Case: 19-60228 Document: 00516269259 Page: 1 Date Filed: 04/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 6, 2022
No. 19-60228 Lyle W. Cayce
Summary Calendar Clerk
Silvia Dinora Hernandez-Abrego; Ashley Ascencio-
Hernandez; Valery Ascencio-Hernandez,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 984 627
BIA No. A208 984 628
BIA No. A208 984 629
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Silvia Dinora Hernandez-Abrego and her two minor daughters,
natives and citizens of El Salvador, petition for review of the order of the
*
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opinion should not be published and is not precedent except under the limited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. 19-60228
Board of Immigration Appeals (BIA) dismissing their appeal of the denial by
the Immigration Judge (IJ) of their application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). They
argue that they received invalid notices to appear (NTAs) under the Supreme
Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), which they
contend deprived the immigration court of jurisdiction. However, the
petitioners did not challenge the validity of their NTAs or jurisdiction over
their cases before either the IJ or the BIA. Because these arguments were not
exhausted, we lack jurisdiction to consider them. Roy v. Ashcroft, 389 F.3d
132, 137 (5th Cir. 2004); see 8 U.S.C. § 1252(d)(1).
Further, the petitioners argue that they demonstrated their
entitlement to asylum and withholding of removal by proving the existence
of past persecution by presenting evidence of gang threats, the murder of
Hernandez-Abrego’s husband’s uncle and the disappearance of another
uncle, and physical harm inflicted by the gang on Hernandez-Abrego’s
husband, as well as documentary evidence. They contend they established a
nexus between the persecution and a protected ground because the evidence
showed that the gang targeted Hernandez-Abrego because of her familial
relationship with her husband. Because the BIA based its decision on the lack
of a nexus between the proposed particular social group (PSG) and the feared
persecution, only that issue is before us. See Dong Sik Kwon v. INS, 646 F.2d
909, 916 (5th Cir. 1981).
On petition for review of a BIA decision, we review factual findings
for substantial evidence and questions of law de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). We “may not overturn the BIA’s
factual findings unless the evidence compels a contrary conclusion.” Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The Attorney General
may, within his discretion, grant asylum to a refugee, i.e., a person who is
outside his country and “unable or unwilling to return ‘because of
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persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.’”
Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (quoting 8 U.S.C.
§ 1101(a)(42)(A)); 8 C.F.R. § 1208.13(b). The alien must demonstrate “that
race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant.” Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (internal
quotation marks, citations, and emphasis omitted).
In this case, the evidence does not suggest that the gang harbored an
animus for the family. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th
Cir. 2015). Rather, the gang targeted Hernandez-Abrego’s husband and his
uncles because they were perceived as wealthy and because they had
motorcycles that the gang could use to commit crimes. See id. at 492-93.
Economic extortion and actions based on a criminal motive or a desire for
financial gain do not rise to persecution on account of a protected ground.
See Shaikh, 588 F.3d at 864; Garcia v. Holder, 756 F.3d 885, 890 (5th Cir.
2004). Moreover, many of the husband’s family members were living in El
Salvador without suffering physical harm from the gang. See Ramirez-Mejia,
794 F.3d at 493. Substantial evidence supports the BIA’s and the IJ’s
determinations that Hernandez-Abrego’s familial relationship was not a
central reason for the persecution. See Ramirez-Mejia, 794 F.3d at 493;
Shaikh, 588 F.3d at 864.
Withholding of removal has a higher “objective standard” than
asylum, requiring an applicant to demonstrate “a clear probability of
persecution on the basis of race, religion, nationality, membership in a
particular social group, or political opinion.” Chen v. Gonzales, 470 F.3d
1131, 1138 (5th Cir. 2006) (internal quotation marks and citations omitted);
see 8 C.F.R. § 1208.16(b)(1)(iii). Accordingly, the record does not compel
the conclusion that the petitioners satisfied either the standard for asylum or
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the more demanding standard for withholding of removal. See Gomez-
Palacios, 560 F.3d at 358; Chen, 470 F.3d at 1138.
Based on the foregoing, the petition is DENIED in part and
DISMISSED in part for lack of jurisdiction.
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