IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2009
No. 08-60794
Summary Calendar Charles R. Fulbruge III
Clerk
M E L V A E S P E R A N Z A V IL L A N U E V A -A M A Y A ; JE FF R Y M U N IR
VILLANUEVA-AMAYA; BAYRON OSMIN CHINCHILLA-VILLANUEVA;
JOSE INAYN CHINCHILLA-VILLANUEVA
Petitioners
v.
ERIC H. HOLDER, JR., U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 403 410
No. A098 403 394
No. A098 403 395
No. A094 770 741
Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Melva Esperanza Villanueva (Villanueva), Jeffry Munir Villanueva-Amaya
(Jeffry), Bayron Osmin Chinchilla-Villanueva (Bayron), and Jose Inayn
Chinchilla-Villanueva (Jose), who are all citizens and natives of Honduras, have
petitioned for review of the Board of Immigration’s (BIA) order affirming the
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60794
Immigration Judge’s (IJ) denial of their individual applications for asylum and
for withholding of removal.
Villanueva argues that she, Bayron, and Jeffry, established exceptional
circumstances excusing their failure to file an application within one year of
their arrival into the United States. Villanueva relies on the fact that she was
very ill when she entered the United States in 2002. The Government responds
that the court lacks jurisdiction to review the claim regarding proof of
exceptional circumstances because the petitioners have not raised a question of
law or a constitutional issue regarding the issue.
An alien’s failure to file an application for asylum within one year of his
or her latest arrival in the United States, may be excused if the alien shows
“changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an
application within the [one-year] period.” § 1158(a)(2)(B), (D). After the passage
of the REAL ID Act, this court has jurisdiction to review a determination of
timeliness that turns on a constitutional claim or question of law. Zhu v.
Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007). However, this court lacks
jurisdiction to review determinations of timeliness that are based on findings of
fact. See id. at 594-95.
The IJ’s rejection of Villanueva’s argument that her medical condition
constituted an exceptional circumstance justifying the untimely filing of an
asylum application was a factual determination. Villanueva has not challenged
the determination on a legal or constitutional basis. Thus, this court lacks
jurisdiction to consider the asylum claims of Villanueva, Jeffry, and Bayron.
Zhu, 493 F.3d at 594-95. However, they remain entitled to seek withholding of
removal. Jose timely filed an application for asylum and may seek both types
of relief.
Villanueva argues that the IJ erred in determining that she was not
subject to persecution despite the evidence that she was socially ostracized and
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No. 08-60794
evidence of discrimination against HIV positive and AIDS patients in the
Government hospitals and clinics in Honduras.
The Government is correct that the respondents did not address the issue
of Villanueva’s ability to obtain medical treatment in San Pedro in their appeal
to the BIA or in their brief to this court. The failure to exhaust administrative
remedies with respect to an issue deprives this court of jurisdiction to review
that claim. Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Thus, the
court cannot review the claim that there is discrimination in the medical
treatment of HIV positive or AIDS patients that rises to the level of persecution.
To be eligible for withholding of removal, an alien must demonstrate a
“clear probability” of Government sanctioned persecution upon return. Faddoul
v. INS, 37 F.3d 185, 188 (5th Cir. 1994). Villanueva failed to present compelling
evidence that the social ostracism which she experienced in Honduras
constituted persecution. Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996);
Jukic v. INS., 40 F.3d 747, 749 (5th Cir. 1994) (internal quotation marks
omitted). Further, there was no evidence that the Honduran Government
sanctions social ostracism of HIV positive persons or that Villanueva was
personally singled out for mistreatment. Villanueva has not shown past
persecution or a clear probability that she will be persecuted if she returns to
Honduras. Jukic, 40 F.3d at 749; Faddoul, 37 F.3d at 188. Nor have Jose,
Bayron, or Jeffry shown that they suffered persecution or fear future persecution
due to their relationship to Villanueva. Therefore, the boys cannot claim
persecution warranting asylum or withholding of removal based on their
mother’s condition.
Villanueva argues that, in addition to being persecuted because of their
kinship with her, her sons and brother are subject to persecution by gang
members because they are young males who have lost two brothers or uncles to
murder at the hand of gangs. The petitioners complained in their appeal to the
BIA that gang violence has been recognized in the Country Reports to exacerbate
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No. 08-60794
the problems with human rights in Honduras, but did not address the IJ’s
specific finding that the petitioners did not establish that they could not receive
police protection in other areas of the country. The failure to exhaust this claim
administratively deprives this court of jurisdiction over the issue. Wang, 260
F.3d at 452-53.
However, the BIA denied this claim based on its determination that there
was no evidence that the gang was motivated to attack the youth based on a
protected ground. The petitioners failed to present compelling evidence that
young Honduran males exposed to gang violence are part of particular social
group, who have common immutable characteristics. Youth, nationality, and
gender are general traits that are not common immutable characteristics that
cannot be altered. Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir.2006).
The petitioners have not provided compelling evidence showing that the
IJ erred in denying Jose’s claim for asylum or all the petitioners’ applications for
withholding of removal.
The respondents have not pursued a claim under Convention Against
Torture on appeal. Thus, this issue has been abandoned. Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003).
The petition for review is DENIED.
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