Case: 20-60104 Document: 00516164870 Page: 1 Date Filed: 01/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2022
No. 20-60104
Lyle W. Cayce
Clerk
Maria Elisabet Velasquez-De Hernandez; Claudia
Georgina Hernandez-Velasquez; Raul Edgardo
Hernandez-Velasquez,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A202 030 918
Agency No. A202 030 919
Agency No. A206 759 310
Before Jolly, Willett, and Englehardt, Circuit Judges.
Per Curiam:*
Maria Elisabet Velasquez-De Hernandez is a native and citizen of El
Salvador. In 2014, she and her children—Claudia and Raul—were charged
*
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opinion should not be published and is not precedent except under the limited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: 20-60104 Document: 00516164870 Page: 2 Date Filed: 01/12/2022
No. 20-60104
with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as aliens present in the
United States without being admitted or paroled. Velasquez-De Hernandez
later filed an application for asylum and withholding of removal based on
membership in a particular social group, which her attorney defined as
“family.” She listed Claudia as a derivative beneficiary of her asylum
application. Raul, on the other hand, filed an individual asylum application
that mirrored his mother’s. The family’s cases were later consolidated.
Petitioner 1 now seeks review of the Board of Immigration Appeals’
order affirming the immigration judge’s denial of her application for asylum
and withholding of removal. She argues (1) substantial evidence does not
support the BIA’s conclusion that she failed to show a sufficient nexus
between persecution and her putative social group, (2) her family-based
social group is sufficiently cognizable, and (3) if all else fails, she is entitled to
humanitarian asylum or protection under the Convention Against Torture.
None of Petitioner’s arguments merit relief. First, she has not shown
that the evidence presented “‘was so compelling that no reasonable
factfinder could fail to find’ the nexus requirement satisfied.” Berrios-Bruno
Garland, No. 18-60276, 2021 WL 3624766, at *4 (Aug. 16, 2021) (per curiam)
(citing INS v. Elias-Zacarias, 502 U.S. 478, 482–84 (1992)); accord Orellana-
Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)). Substantial evidence
supports the BIA’s conclusion that Salvadorian gang members were not
sufficiently motivated by Petitioner’s family ties when targeting her as a part
of their criminal enterprise. See, e.g., Vazquez-Guerra v. Garland, 7 F.4th
265, 270 (5th Cir. 2021). Though Petitioner has undoubtedly endured tragic
1
We refer only to Maria Velasquez-De Hernandez (unless otherwise specified)
because she is the lead petitioner, and her children’s claims are dependent on the same
facts and circumstances. See, e.g., Munyandamutsa v. Ashcroft, 84 Fed. App’x 430, 430 (5th
Cir. 2003).
2
Case: 20-60104 Document: 00516164870 Page: 3 Date Filed: 01/12/2022
No. 20-60104
circumstances, we are not permitted “to re-weigh evidence or substitute our
own factual determinations” where substantial evidence supports the
agency’s nexus conclusion. Berrios-Bruno, 2021 WL 3624766, at *4 (citing
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)). We are here
confronted with such a case. 2 See Zhang v. Gonzales, 432 F.3d 339, 344 (5th
Cir. 2005).
Second, we lack jurisdiction to consider Petitioner’s remaining
claims—that she is entitled to either humanitarian asylum or protection
under the Convention Against Torture—because she did not exhaust her
administrative remedies. See, e.g., Omari v. Holder, 562 F.3d 314, 321 (5th
Cir. 2009). Petitioner did not invoke the Convention Against Torture before
the IJ, nor did she urge humanitarian asylum before the BIA. We cannot
therefore consider these claims.
Finally, we pause to note that Petitioner’s failure to establish eligibility
for asylum or withholding of removal necessarily defeats her children’s
claims, which are dependent on the same facts and circumstances.
For these reasons, the petition is DENIED in part and
DISMISSED in part for lack of jurisdiction.
2
This moots any need for us to consider Petitioner’s arguments regarding whether
her family-based social group was sufficiently cognizable, which was presented to but
similarly unaddressed by the BIA. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). Neither
must we independently analyze the BIA’s determination that Petitioner was ineligible for
withholding of removal, which imposes a higher bar than that for asylum. See, e.g., Majd v.
Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (citing Eduard v. Ashcroft, 379 F.3d 182, 186 n.2
(5th Cir. 2004)).
3