Case: 20-60887 Document: 00516402211 Page: 1 Date Filed: 07/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 21, 2022
No. 20-60887
Summary Calendar Lyle W. Cayce
Clerk
Kevin David Hernandez-Marchante,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A209 998 631
Before Higginbotham, Higginson, and Engelhardt, Circuit
Judges.
Per Curiam:*
Kevin David Hernandez-Marchante, a native and citizen of El
Salvador, petitions for review of the decision of the Board of Immigration
Appeals (BIA) dismissing his appeal from the denial by an immigration judge
*
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opinion should not be published and is not precedent except under the limited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: 20-60887 Document: 00516402211 Page: 2 Date Filed: 07/21/2022
No. 20-60887
(IJ) of asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). As a threshold matter, Hernandez-Marchante
argues that based on recent case law, the IJ did not have jurisdiction and we
should, thus, terminate these proceedings because his initial notice to appear
(NTA) did not contain the date and place of his first immigration hearing.
In Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021), the United
States Supreme Court concluded that an NTA sufficient to trigger the stop-
time rule must have all of the requisite information in a single document.
However, Hernandez-Marchante is not seeking cancellation of removal such
that the time-stop rule is applicable. Accordingly, we decline to terminate for
lack of jurisdiction.
On appeal, Hernandez-Marchante argues that he is entitled to relief
based on a showing of past persecution and a fear of future persecution on
account of his membership in a particular social group, namely witnesses to
gang violence in El Salvador. He further argues that it is more likely than not
that he would be tortured and that government officials would acquiesce in
his torture if he were to return to El Salvador. Moreover, he argues that the
IJ should have granted him discretionary humanitarian asylum based on his
past persecution.
We generally have authority to review only the decision of the BIA,
but we will consider the IJ’s decision when it influenced the determination of
the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Here, “although
the BIA agreed with the IJ’s analysis in certain respects, the BIA’s decision
does not rely on the IJ’s decision, and thus our review is confined to the BIA’s
analysis and reasoning.” Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th
Cir. 2010). We review the BIA’s rulings of law de novo and its findings of
fact for substantial evidence. Zhu, 493 F.3d at 594; see 8 U.S.C.
§ 1252(b)(4)(B).
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Regardless of whether Hernandez-Marchante demonstrated
persecution, he has not established that any persecution he suffered was on
account of his membership in a particular social group because his proposed
group, witnesses of gang violence in El Salvador, is too amorphous to be
defined with any particularity. See Hernandez-De La Cruz v. Lynch, 819 F.3d
784, 786-87 (5th Cir. 2016) (stating that former informants do not constitute
a cognizable particular social group). Moreover, Hernandez-Marchante
cannot establish that the central reason for his harassment by gang members
was because he witnessed a shooting, especially where he testified that gang
members repeatedly harassed him solely because he refused to join the gang.
See Gonzales-Veliz v. Barr, 938 F.3d 219, 228-29 (5th Cir. 2019). Mere
criminality is not a basis for asylum. See Thuri v. Ashcroft, 380 F.3d 788, 792-
93 (5th Cir. 2004); Eduard v. Ashcroft, 379 F.3d 182, 190 (5th Cir. 2004).
Because Hernandez-Marchante was not entitled to asylum, he
necessarily cannot establish that he was entitled to withholding of removal,
which requires a higher standard of proof. See Chen v. Gonzales, 470 F.3d
1131, 1135, 1138 (5th Cir. 2006). In addition, an alien seeking relief under the
CAT must satisfy a rigorous standard because he must provide proof of
torture and not merely persecution. Id. at 1139. The incidents and threats
Hernandez-Marchante described did not rise to the level of torture. See 8
C.F.R. § 208.18(a)(1) (defining torture as “any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person…
by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.”); § 208.18(a)(2)
(“Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman[,] or degrading treatment or
punishment that do not amount to torture.”). Furthermore, Hernandez-
Marchante cannot establish that any torture would involve “sufficient state
action.” Tamara-Gomez v. Gonzales, 447 F.3d 343, 350-51 (5th Cir. 2006).
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We are precluded from reviewing Hernandez-Marchante’s assertion
that the IJ should have granted humanitarian asylum because he did not raise
this specific argument before the BIA and, thus, failed to exhaust his
administrative remedies. See 8 U.S.C. § 1252(d)(1); Kane v. Holder, 581 F.3d
231, 237 (5th Cir. 2009). The evidence does not compel a conclusion
contrary to the BIA’s determination that Hernandez-Marchante did not
qualify for asylum, withholding of removal, or protection under the CAT. See
Chen, 470 F.3d at 1134.
Accordingly, the petition for review is DENIED, in part, and
DISMISSED, in part.
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