Amaya-Lara v. Garland

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   opinion should not be published and is not precedent except under the limited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.




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