Case: 20-60282 Document: 00515909348 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60282 June 22, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Maria Consuelo Rubio-de Machuca;
Nelson Antonio Machuca-Rubio,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A 209 232 363
No. A 209 232 369
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Maria Rubio-de Machuca and her derivative beneficiary, Nelson
Machuca-Rubio, are natives and citizens of El Salvador. They petition for
review of the decision of the Board of Immigration Appeals (“BIA”)
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-60282 Document: 00515909348 Page: 2 Date Filed: 06/22/2021
No. 20-60282
dismissing their appeal of the denial by the immigration judge (“IJ”) of their
application for asylum, withholding of removal, and relief under the Conven-
tion Against Torture (“CAT”). Rubio-de Machuca contends that she was
persecuted and fears future persecution based on her anti-gang political opin-
ion and her membership in a particular social group, defined as “landowners
who refuse to cooperate with gangs.”
This court reviews the final decision of the BIA and will consider the
IJ’s decision only where it influenced the decision of the BIA. Zhu v. Gon-
zales, 493 F.3d 588, 593 (5th Cir. 2007). Factual findings are reviewed under
the substantial-evidence standard; legal questions, de novo. Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009). Under the substantial-evidence standard,
this court may not reverse an immigration court’s factual findings unless
“the evidence was so compelling that no reasonable factfinder could con-
clude against it.” Id. at 537. Among the findings of fact that this court
reviews for substantial evidence is the conclusion that an applicant is not
eligible for asylum, withholding of removal, or relief under the CAT. Zhang
v. Gonzales, 432 F.3d 339, 344−45 (5th Cir. 2005).
To be eligible for asylum, Rubio-de Machuca must show that she is
unable or unwilling to return to her country “because of persecution or a
well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see 8 U.S.C. § 1158(b)(1). Rubio-de Machuca has failed to
show that the harm she suffered in El Salvador rises to the level of persecu-
tion or that she has a well-founded fear of future persecution on account of a
protected ground. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Because Rubio-de Machuca has failed to demonstrate her entitlement to
asylum, she has also failed to demonstrate her entitlement to withholding of
removal. See id.
2
Case: 20-60282 Document: 00515909348 Page: 3 Date Filed: 06/22/2021
No. 20-60282
Rubio-de Machuca has also failed to establish that, more likely than
not, she would be tortured with the acquiescence of a governmental official if
removed to El Salvador. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th
Cir. 2015); see also Morales v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017)
(defining “torture” for purposes of the CAT). Her claim that she will be
tortured based on generalized social conditions in El Salvador is too specula-
tive to support relief under the CAT and is insufficient to compel reversal
under the substantial-evidence standard. See Ramirez-Mejia, 794 F.3d
at 493−94.
Finally, Rubio-de Machuca avers, for the first time on appeal, that the
immigration court lacked jurisdiction to enter a removal order because she
was issued a notice to appear that did not state the time and place of her
immigration hearing. Because Rubio-de Machuca did not exhaust her admin-
istrative remedies as to that issue, that portion of the petition is dismissed for
lack of jurisdiction. See Pierre-Paul v. Barr, 930 F.3d 684, 690−92 (5th Cir.
2019), cert. denied, 140 S. Ct. 2718 (2020), abrogated in part on other grounds
by Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Flores-Abarca v. Barr,
937 F.3d 473, 477−78 (5th Cir. 2019).
Accordingly, the petition for review is DISMISSED IN PART and
DENIED IN PART.
3