Case: 20-60412 Document: 00516088788 Page: 1 Date Filed: 11/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60412 November 10, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Sanjuanita Martinez Padilla,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 793 807
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Sanjuanita Martinez Padilla, a native and citizen of Mexico, petitions
for review of an immigration judge’s decision affirming an asylum officer’s
determination that she lacked a reasonable fear of persecution or torture.
*
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opinion should not be published and is not precedent except under the limited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: 20-60412 Document: 00516088788 Page: 2 Date Filed: 11/10/2021
No. 20-60412
To establish a reasonable fear of persecution, an alien must
“establish[] a reasonable possibility that he or she would be persecuted on
account of his or her race, religion, nationality, membership in a particular
social group or political opinion.” 8 C.F.R. § 1208.31(c).1 “[A] particular
social group must: (1) consist of persons who share a common immutable
characteristic; (2) be defined with particularity; and (3) be socially visible or
distinct within the society in question.” Gonzales-Veliz v. Barr, 938 F.3d 219,
229 (5th Cir. 2019).
Martinez Padilla claims membership in particular social groups
consisting of “family members of former or current members of Cartel del
Golfo” and “family members of victims of cartel violence in Mexico.”
However, neither group is cognizable because Martinez Padilla has failed to
offer any evidence demonstrating that these groups are perceived as distinct
within Mexican society. See id. at 232. Moreover, the proposed groups lack
particularity because they could include a “wide swath of society crossing
many political orientations, lifestyles, and identifying factors.” See Orellana-
Monson v. Holder, 685 F.3d 511, 521–22 (5th Cir. 2012). Finally, the proposed
social group of “family members of victims of cartel violence in Mexico” is
not cognizable because it is “defined by, and does not exist independently
of,” the persecution of its members. See Gonzales-Veliz, 938 F.3d at 232.
Because Martinez Padilla failed to claim membership in a distinct social
group, substantial evidence supports the determination that she failed to
establish a reasonable fear of persecution.
1
Although the Government argues that this court should apply a “facially
legitimate and bona fide reason” standard rather than the substantial evidence standard in
evaluating an immigration judge’s reasonable fear determination, it is not necessary to
determine the appropriate standard of review at this time because Martinez Padilla’s claim
fails even under the less deferential substantial evidence test. See Lara-Nieto v. Barr, 945
F.3d 1054, 1060 n.5 (5th Cir. 2019).
2
Case: 20-60412 Document: 00516088788 Page: 3 Date Filed: 11/10/2021
No. 20-60412
To establish entitlement to relief under the Convention Against
Torture, an alien must prove that it is more likely than not that she will be
tortured with the consent or acquiescence of public officials if she returns to
the particular country in question. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
Although Martinez Padilla argues that the immigration judge held her to a
heightened standard of proof in determining that she failed to demonstrate a
reasonable fear of torture, the federal regulations explicitly provide that
evidence of past torture is relevant in determining whether an applicant is at
risk of future torture. 8 C.F.R. § 1208.16(c)(3)(i). Moreover, her
documentary evidence regarding country conditions merely suggests that
Mexico is unable to protect its citizens from criminal cartels. But “a
government’s inability to protect its citizens does not amount to
acquiescence.” Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019).
Accordingly, substantial evidence supports the determination that she failed
to establish a reasonable fear of torture.
Based upon the foregoing, the petition for review is DENIED.
3