Case: 20-60338 Document: 00516083227 Page: 1 Date Filed: 11/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 5, 2021
No. 20-60338 Lyle W. Cayce
Summary Calendar Clerk
Mario Enrique Amaya-Lara,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 636 848
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Mario Enrique Amaya-Lara, a native and citizen of Honduras,
petitions us for review of a decision of the Board of Immigration Appeals that
upheld the denial of his asylum application. His application and testimony
describe fearing harm for refusing to join a gang.
*
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opinion should not be published and is not precedent except under the limited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: 20-60338 Document: 00516083227 Page: 2 Date Filed: 11/05/2021
No. 20-60338
We are not compelled to find that Amaya-Lara has proven the
elements of his asylum claim. The first element of an asylum claim is
persecution, and when a private group, such as a gang, perpetuates the
alleged persecution the applicant must prove that the government was unable
or unwilling to prevent the harm. Gonzales-Veliz v. Barr, 938 F.3d 219 (5th
Cir. 2019). The Board found this element unproven, and Amaya-Lara has
waived it by failing to brief it, so we cannot find this claim fulfilled. Thuri v.
Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004). Amaya-Lara’s argument for a
fear of future persecution claim is based on the claim that he is entitled to a
presumption of future persecution, but that presumption only applies when
a past persecution claim is already proven. See 8 C.F.R. §§ 208.13(b)(1),
208.16(b)(1)(i).
We are also not compelled to find that Amaya-Lara will, more likely
than not, be tortured in the future. He has not provided any evidence to
prove that the government of Honduras will acquiesce to any future torture.
See Morales v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017); see also See Martinez
Manzanares v. Barr, 925 F.3d 222, 229 (5th Cir. 2019).
DENIED IN PART; DISMISSED IN PART.
2