Case: 20-60867 Document: 00516347019 Page: 1 Date Filed: 06/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 7, 2022
No. 20-60867 Lyle W. Cayce
Summary Calendar Clerk
Lud Maday Aleman-Garcia; Erika Fernanda Torres-
Aleman,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 848 811
BIA No. A206 848 812
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Lud Maday Aleman-Garcia, a native and citizen of Honduras,
petitions for review of an order by the Board of Immigration Appeals (BIA)
dismissing her appeal from the denial of both her motion to terminate
*
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opinion should not be published and is not precedent except under the limited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. 20-60867
proceedings and her application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Included in her
application as a derivative beneficiary is her daughter, Erika Fernanda
Torres-Aleman.
According to Aleman-Garcia, the BIA should have terminated her
removal proceedings for lack of jurisdiction in light of Pereira v. Sessions, 138
S. Ct. 2105, 2109-10 (2018), because her notice to appear did not include the
time and date of her removal hearing. In denying her motion to terminate,
the BIA reasoned that Aleman-Garcia’s argument was foreclosed by Pierre-
Paul v. Barr, 930 F.3d 684, 690-91 (5th Cir. 2019). While the Pierre-Paul
decision has since been abrogated in part by Niz-Chavez v. Garland, 141 S.
Ct. 1474, 1479-80 (2021), we recently explained that “Niz-Chavez does not
dislodge our ultimate holding in Pierre-Paul” that the regulatory provision of
8 C.F.R. § 1003.14 governs “‘what a notice to appear must contain to
constitute a valid charging document.’” Maniar v. Garland, 998 F.3d 235,
242 n.2 (5th Cir. 2021) (quoting Pierre-Paul, 930 F.3d at 693). Accordingly,
there is no merit to Aleman-Garcia’s jurisdictional challenge, since, under
§ 1003.14, 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,
930 F.3d at 693; see Maniar, 998 F.3d at 242 n.2 (confirming that this holding
in Pierre-Paul “remains the law of our circuit”).
Additionally, Aleman-Garcia asserts that the BIA erred in denying her
claims for asylum, withholding of removal, and protection under the CAT.
The factual determinations underpinning the ultimate conclusion of whether
an alien is eligible for such relief are reviewed under the substantial evidence
standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Under this
standard, the BIA’s factual findings may not be reversed unless the alien
shows that “the evidence was so compelling that no reasonable factfinder
2
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No. 20-60867
could conclude against it.” Wang v. Holder, 569 F.3d 531, 536-37 (quote at
537) (5th Cir. 2009).
With respect to Aleman-Garcia’s request for asylum and withholding
of removal, she has failed to show that the evidence compels a conclusion
that no reasonable factfinder could find, as the BIA did, that there was not a
nexus between her alleged past or feared future persecution and a protected
ground. See Sharma v. Holder, 729 F.3d 407, 411-12 (5th Cir. 2013); Shaikh
v. Holder, 588 F.3d 861, 864 (5th Cir. 2009). She has not shown that either
of her two proposed particular social groups relating to her ownership of a
small business defying the narcotraffickers was cognizable. See Jaco v.
Garland, 24 F.4th 395, 405 n.4 (5th Cir. 2021); Hernandez-De La Cruz v.
Lynch, 819 F.3d 784, 786-87 & n.1 (5th Cir. 2016); Mwembie v. Gonzales, 443
F.3d 405, 414-15 (5th Cir. 2006). To the extent that Aleman-Garcia argues
that the BIA did not adequately consider her political opinion as a motive for
her persecution, her argument fails. See Ghotra v. Whitaker, 912 F.3d 284,
290 (5th Cir. 2019). Ultimately, Aleman-Garcia has failed to show that the
record evidence was so compelling that no reasonable factfinder could
conclude that neither her political opinion nor her familial relationship with
her husband was a central reason for her alleged past or feared future
persecution. 1 See Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015);
Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004).
Furthermore, Aleman-Garcia has not demonstrated that the evidence
compels a conclusion that the BIA erred in denying her claim for CAT relief.
See Ramirez-Mejia, 794 F.3d at 493-94; Zhang v. Gonzales, 432 F.3d 339, 344-
45 (5th Cir. 2005).
1
There is no merit to Aleman-Garcia’s assertion that a lesser nexus standard
applies to her withholding of removal claim. See Shaikh, 588 F.3d at 864.
3
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No. 20-60867
Finally, we lack jurisdiction to consider Aleman-Garcia’s claim for
humanitarian asylum, as she failed to exhaust her administrative remedies
with respect to this claim by presenting it to the BIA. See Hernandez-De La
Cruz, 819 F.3d at 786. Accordingly, the petition for review is DENIED IN
PART and DISMISSED IN PART.
4