Case: 20-61218 Document: 00516399839 Page: 1 Date Filed: 07/19/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 19, 2022
No. 20-61218 Lyle W. Cayce
Summary Calendar Clerk
Pedro Alfonso Alvarenga-Palacios; Alen Adrian
Alvarenga Guzman,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A208 278 024
Agency No. A208 278 025
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Pedro Alfonso Alvarenga-Palacios, along with his minor son, Alen
Adrian Alvarenga Guzman, a rider on his father’s asylum application, have
petitioned for review of a decision of the Board of Immigration Appeals (BIA)
*
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opinion should not be published and is not precedent except under the limited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: 20-61218 Document: 00516399839 Page: 2 Date Filed: 07/19/2022
No. 20-61218
dismissing an appeal from a decision of the immigration judge (IJ) concluding
that they were ineligible for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). We review the BIA’s decision for
substantial evidence, see Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005),
and consider the IJ’s decision only to the extent it influenced the BIA, see
Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
In reliance on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the
petitioners move for a remand to allow the IJ to determine whether the case
can be heard. Our holding in 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.
at 1479-80, that a notice to appear is not fatally defective because it does not
include the time, date, and place of future removal proceedings remains valid
after the decision in Niz-Chavez. See Garcia v. Garland, 28 F.4th 644, 647-
48 (5th Cir. 2022). The motion for a remand is therefore DENIED.
The respondent moves to dismiss this matter under the fugitive
disentitlement doctrine. See Giri v. Keisler, 507 F.3d 833, 836 (5th Cir. 2007).
The petitioners dispute the assertion that Alvarenga-Palacios is a fugitive.
The motion to dismiss is DENIED.
Challenging the BIA’s determination that they are ineligible for
asylum and withholding of removal, the petitioners argue that a sufficient
nexus was established because membership in a particular social group
defined as “farmers in a rural area of El Salvador” is one central reason the
MS-13 gang targeted Alvarenga-Palacios and others in his family by
threatening them with harm if they did not give money and other valuables
to the gang. They also argue that they will be persecuted by the gang if they
return to El Salvador because Alvarenga-Palacios failed to comply previously
with the gang’s demands.
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No. 20-61218
Substantial evidence supports the finding that Alvarenga-Palacios’s
persecutors were motivated not by virtue of his membership in the proposed
PSG, but rather by private criminality. See Zhang, 432 F.3d at 344.
Accordingly, he has failed to demonstrate that a reasonable factfinder would
be compelled to conclude that his membership in his proposed PSG was one
central reason for any persecution suffered or feared. See Ramirez-Mejia v.
Lynch, 794 F.3d 485, 492-93 (5th Cir. 2015); Orellana-Monson v. Holder, 685
F.3d 511, 521-22 (5th Cir. 2012); Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th
Cir. 2004). Because the adverse nexus determination is dispositive of the
claims for asylum and withholding of removal, see Gonzales-Veliz v. Barr, 938
F.3d 219, 224 (5th Cir. 2019), we need not reach the additional arguments
raised as to these claims, see INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
Finally, the petitioners challenge the denial of their claim for CAT
relief. Contrary to their contentions, the BIA did not address the merits of
the CAT claim; rather, it stated that, because the petitioners had not
meaningfully challenged the IJ’s denial of CAT relief, the issue was deemed
waived. To the extent that the petitioners are now attacking the BIA’s waiver
determination, we lack jurisdiction to consider the issue. See Martinez-
Guevara v. Garland, 27 F.4th 353, 360 (5th Cir. 2022). Additionally, because
the petitioners failed to present a CAT claim to the BIA, we lack jurisdiction
to review their challenge to the denial of CAT relief. See Omari v. Holder,
562 F.3d 314, 318-19 (5th Cir. 2009).
The petition for review is DENIED in part and DISMISSED in
part.
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