Case: 19-60825 Document: 00515804031 Page: 1 Date Filed: 03/31/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 31, 2021
No. 19-60825 Lyle W. Cayce
Summary Calendar Clerk
Vilma Dolores Argueta-Canales,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 453 026
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Petitioner Vilma Dolores Argueta-Canales is a native and citizen of El
Salvador. She petitions for review of an order of the Board of Immigration
Appeals (BIA) dismissing her appeal from an order of an Immigration Judge
(IJ) denying her application for asylum, withholding of removal, and relief
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60825 Document: 00515804031 Page: 2 Date Filed: 03/31/2021
No. 19-60825
under the Convention Against Torture (CAT). The petition for review is
denied in part and dismissed in part.
Argueta-Canales contends that the BIA erred in holding her claimed
particular social groups noncognizable. For a proposed particular social
group to be cognizable, it must, inter alia, exist independently of the harm
asserted and not be defined circularly by the persecution suffered. Gonzales-
Veliz v. Barr, 938 F.3d 219, 230-32 (5th Cir. 2019). Argueta-Canales’s
proposed social group “women victims of rape” is defined by, and does not
exist independently of, the harm asserted by the group members. See id. at
232. This portion of the petition for review is denied.
Regarding the proposed social groups “victims of abuse by their
parent(s)” and “victims of threats by gang members,” Argueta-Canales did
not file a motion asking the BIA to reconsider whether she adequately
articulated those two groups to the IJ. Likewise, Argueta-Canales did not file
a motion to have the BIA reconsider its decision that her request for
humanitarian asylum was not adequately presented to the IJ. Failure to
exhaust an issue creates a jurisdictional bar. Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004). This portion of the petition for review is dismissed. See id.
An applicant who does not carry her burden of proof for asylum does
not meet the higher standard for withholding of removal. Orellana-Monson
v. Holder, 685 F.3d 511, 518 (5th Cir. 2012). Because Argueta-Canales did
not meet the lower burden for asylum, the BIA did not err in denying her
request for withholding of removal. See id. This portion of the petition for
review is denied.
Although Argueta-Canales argues that the IJ erred by determining
that she could reasonably relocate within El Salvador to avoid harm, the BIA
specifically did not address that issue. This court reviews the opinion of the
BIA and does not address the opinion of the IJ unless it impacted the BIA’s
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No. 19-60825
decision. See Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). This portion
of the petition for review is dismissed. See Castillo-Rodriguez v. INS, 929 F.2d
181, 183 (5th Cir. 1991).
To qualify for relief under the CAT, an applicant must establish that
the government of her home country would instigate, consent to, or
acquiesce in her torture. Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir.
2015). The BIA’s conclusion that Argueta-Canales did not prove that she
would be tortured by, or at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity
is based on the evidence presented and is substantially reasonable. See
Revencu v. Sessions, 895 F.3d 396, 401 (5th Cir. 2018). This portion of the
petition for review is denied.
DENIED IN PART; DISMISSED IN PART.
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