Case: 21-60840 Document: 00516409816 Page: 1 Date Filed: 07/27/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 27, 2022
No. 21-60840 Lyle W. Cayce
Summary Calendar Clerk
Henry Noel Gomez-Ponce; Dayana Lilieth Gomez-Rivas;
Nagory Yuliery Gomez-Tercero,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 893 929
BIA No. A215 893 928
BIA No. A215 893 927
Before Jolly, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Henry Noel Gomez-Ponce, Dayana Lilieth Gomez-Rivas, and Nagory
Yuliery Gomez-Tercero, natives and citizens of Honduras, petition for
*
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opinion should not be published and is not precedent except under the limited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: 21-60840 Document: 00516409816 Page: 2 Date Filed: 07/27/2022
No. 21-60840
review of the decision by the Board of Immigration Appeals (BIA) dismissing
their appeal from the denial of their applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We lack
jurisdiction to consider their contention that their particular social groups
(PSGs) based on gang opposition were cognizable, as that claim is
unexhausted. See Martinez-Guevara v. Garland, 27 F.4th 353, 359-60 (5th
Cir. 2022).
The petitioners challenge the BIA’s conclusion that they failed to
establish a nexus between their family-based PSGs and the alleged
persecution, which we review for substantial evidence. See Gonzales-Veliz v.
Barr, 938 F.3d 219, 224 (5th Cir. 2019). They rely on evidence that the gang
threatened to kill the son of Gomez-Ponce’s partner and “cut [Gomez-
Ponce’s] family in pieces” because the youth refused the gang’s demands
that he sell drugs for the gang. According to the petitioners, that evidence
showed that the familial relationship between Gomez-Ponce and the youth
was a central reason why the gang targeted Gomez-Ponce. Because the cited
evidence indicates that the gang’s motives were recruitment and retaliation
for failed recruitment efforts, the petitioners fail to show that the evidence
compels a conclusion that there was a nexus between the alleged persecution
and their family-based PSGs. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 492-
93 (5th Cir. 2015); Vazquez-Guerra v. Garland, 7 F.4th 265, 270 (5th Cir.
2021), cert. denied, 142 S. Ct. 1228 (2022).
Additionally, the petitioners challenge the BIA’s conclusion that
neither Gomez-Ponce nor Gomez-Rivas expressed an anti-gang political
opinion, which we also review for substantial evidence. See Changsheng Du
v. Barr, 975 F.3d 444, 447-48 (5th Cir. 2020). They contend that Gomez-
Ponce expressed political opposition to the gang by refusing its extortionate
demands for payments and that Gomez-Rivas expressed an anti-gang
political opinion by refusing to date a gang member and become a member of
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No. 21-60840
that gang. Gomez-Ponce’s testimony instead shows that he has and will
resist the Mara 18 gang’s extortionate demands for a non-political reason—
his inability to pay. Additionally, his previous acquiescence to the gang’s
demands for payment “undermines his claim of an anti-[gang] political
belief.” Id. at 448. Similarly, while Gomez-Rivas testified that a member of
the MS-13 gang threatened to kill her and her family unless she became his
girlfriend and that she rejected his advances, she provided no evidence that
the refusal was politically motivated. Accordingly, the evidence does not
compel a conclusion that Gomez-Ponce or Gomez-Rivas expressed an anti-
gang political opinion. See id. We do not reach the petitioners’ remaining
arguments challenging the denial of asylum and withholding of removal
because the nexus issue is dispositive of the claims. See Gonzales-Veliz, 938
F.3d at 224; INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
The petitioners challenge the BIA’s finding that they failed to
establish it was more likely that not that they would be tortured with
government acquiescence upon return to Honduras. They contend that
Gomez-Ponce’s testimony that people who report gang activities to the
police in Honduras end up dead shows that the police actively participate in
the torture of gang victims. Gomez-Ponce’s speculative testimony is
insufficient to compel a conclusion that a public official would acquiesce in
torture if he were removed to Honduras. See Martinez Manzanares v. Barr,
925 F.3d 222, 229 (5th Cir. 2019). We do not consider the petitioners’
argument that the harm they experienced in Honduras rose to the level of
torture under the CAT, as the BIA did not reach that question. See Aviles-
Tavera v. Garland, 22 F.4th 478, 485-86 (5th Cir. 2022).
The petition is DISMISSED in part and DENIED in part.
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