Case: 20-60673 Document: 00516193629 Page: 1 Date Filed: 02/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 7, 2022
No. 20-60673 Lyle W. Cayce
Summary Calendar Clerk
Jorge Andres Rodriguez-Arevalo; Ademir Enrique
Rodriguez-Arevalo,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. 202 079 678
BIA No. 202 079 677
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Jorge Andres Rodriguez-Arevalo (Jorge) and Ademir Enrique
Rodriguez-Arevalo (Ademir), natives and citizens of El Salvador, are
brothers who petition this court for review of the decision of the Board of
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-60673
Immigration Appeals (BIA) dismissing their appeal of the Immigration
Judge’s (IJ) denial of their applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). They also
move for a remand of this matter to the IJ and for this case to be placed in
abeyance.
We review the decision of the BIA and will consider the IJ’s decision
only to the extent it influenced the BIA. See Shaikh v. Holder, 588 F.3d 861,
863 (5th Cir. 2009). We review questions of law de novo and factual findings
for substantial evidence. Id. Under the substantial evidence standard, “[t]he
alien must show that the evidence was so compelling that no reasonable
factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th
Cir. 2009).
First, relying upon Pereira v. Sessions, 138 S. Ct. 2105 (2018), the
petitioners argue that the BIA erred in finding that the Department of
Homeland Security properly initiated removal proceedings against them
because the Notice to Appear failed to specify the time and location of the
removal proceedings. However, the BIA did not err in determining that the
Department properly commenced removal proceedings because a Notice to
Appear is “sufficient to commence proceedings even if it does not include
the time, date, or place of the initial hearing.” Pierre-Paul v. Barr, 930 F.3d
684, 693 (5th Cir. 2019), abrogated in part on other grounds by Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021).
Second, the petitioners argue that the BIA erred in affirming the IJ’s
determination that they are not entitled to asylum and withholding of
removal based upon their persecution by gangs for being members of the
particular social group consisting of young Salvadoran males who lack
parental protection. We need not resolve the question of whether the
petitioners’ proposed particular social group is cognizable because the
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evidence does not compel a finding that there was a requisite nexus between
the harm they suffered or feared and membership in that group. See Vazquez-
Guerra v. Garland, 7 F.4th 265, 268-69, 270-71 (5th. Cir. 2021), petition for
cert. filed (U.S. Oct. 27, 2021) (No. 21-632). The petitioners testified that
members demanded money from and threatened the petitioners and their
aunt, but we have held that economic extortion and conduct driven by purely
personal or criminal motives do not constitute persecution on account of a
protected ground. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir.
2002). Without the required nexus, the petitioners’ asylum claim fails. See
Tamara-Gomez v. Gonzales, 447 F.3d 343, 349-50 (5th Cir. 2006). Further,
because they did not establish entitlement to asylum, they cannot meet the
standard for withholding of removal. See Efe v. Ashcroft, 293 F.3d 899, 906
(5th Cir. 2002).
Third, the petitioners assert that the BIA erred in affirming the IJ’s
finding that they are not entitled to CAT protection. The record does not
establish that it is more likely than not that they would be tortured if removed
to El Salvador and that any Salvadoran public official knows who they are or
would be willing to acquiesce in their torture. See 8 C.F.R. § 1208.16(c)(2);
8 C.F.R. § 1208.18(a)(1); see also Tamara-Gomez, 447 F.3d at 350. Therefore,
the record evidence does not compel the conclusion that the petitioners are
eligible for CAT protection. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 493
(5th Cir. 2015); Wang, 569 F.3d at 537.
Fourth, the petitioners assert that the BIA erred when it did not grant
their motion to remand based on visa number availability and their Special
Immigrant Juvenile status. Because the petitioners sought to remand their
case to the IJ to determine their eligibility for relief based on previously
unavailable evidence regarding visa number availability and their Special
Immigrant Juvenile status, their request was in the nature of a motion to
reopen and is subject to the substantive requirements for such a motion. See
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Ramchandani v. Gonzales, 434 F.3d 337, 340 n.6 (5th Cir. 2005). The BIA did
not abuse its discretion in denying the petitioners’ motion to open as they
only speculated as to when their visa dates would become available. See
Qorane v. Barr, 919 F.3d 904, 912 (5th Cir. 2019); Ramchandani, 434 F.3d at
340 n.6; Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005).
Finally, the petitioners also raise the following claims: (1) the harm
they experienced in El Salvador rose to the level of persecution; (2) they have
a well-founded fear of future persecution; (3) the El Salvadoran government
is unable or unwilling to protect them from the gangs, ECF 31; (4) they are
unable to relocate safely to another area of El Salvador, and (5) they are
entitled to humanitarian asylum. We lack jurisdiction to consider these
claims. See Vasquez v. Sessions, 885 F.3d 862, 867-69 (5th Cir. 2018);
Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010).
The petition for review is DENIED in part and DISMISSED in
part for lack of jurisdiction. The petitioners’ motions for a remand and for
this case to be placed in abeyance are DENIED.
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