Case: 11-60710 Document: 00512016584 Page: 1 Date Filed: 10/11/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 11, 2012
No. 11-60710
Summary Calendar Lyle W. Cayce
Clerk
JOSE LARA-CASTILLO, also known as Jose Joel Lara-Castillo,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 842 017
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jose Lara-Castillo, a native and citizen of Mexico, petitions this court for
review of an order from the Board of Immigration Appeals (BIA) ordering him
removed and dismissing his appeal from Immigration Judge’s (IJ’s) denial of his
applications for asylum, withholding of removal, and cancellation of removal.
Lara-Castillo argues that the IJ and the BIA erred in denying his application for
cancellation of removal because he established that his removal would result in
exceptional and extremely unusual hardship to his United States citizen
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-60710
children, who face kidnaping for extortion purposes if forced to accompany him
to Mexico. However, because Lara-Castillo’s claim does not involve a
constitutional claim or a question of law, this court lacks jurisdiction to review
the IJ’s discretionary determination, as affirmed by the BIA, that Lara-Castillo
failed to show the requisite “exceptional and extremely unusual hardship” to his
two United States citizen children. INA § 242(a)(2)(B)(i), 8 U.S.C.
§ 1252(a)(2)(B)(i); see Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). Lara-
Castillo’s petition for review is therefore dismissed insofar as it challenges the
agency’s discretionary denial of cancellation of removal.
Lara-Castillo argues that the BIA and the IJ erred as a matter of law in
denying his applications for asylum and withholding of removal because, as a
Mexican parent of two United States citizen children who face kidnaping and
extortion by criminals or gang members, he fears persecution on account of his
membership in a particular social group. He characterizes his group as
“Mexican parents of United States citizen children who face abduction and
extortion because of their nationality.”
To qualify for asylum and withholding of removal, a petitioner must
establish persecution or a well-founded fear of persecution in his country, by the
government or a person or group that the government is unable or unwilling to
control, on the basis of any of five categories of which membership in a particular
social group is one. 8 U.S.C. § 1101(a)(42)(A). Members of a particular social
group “share a common immutable characteristic that they either cannot change
or should not be required to change because it is fundamental to their individual
identities or consciences.” Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir.
2006) (internal quotation marks omitted). However, absent a nexus between the
social group and the claimed persecution, Lara-Castillo cannot establish
eligibility for asylum and withholding of removal. See Tamara-Gomez v.
Gonzales, 447 F.3d 343, 348-50 (5th Cir. 2006).
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No. 11-60710
Lara-Castillo testified before the IJ that the gangs’ motivation for
extortion or theft is a desire for money, not a desire to punish or target him for
membership in his social group. There is no evidence to suggest that gangs or
other criminals would target him because his children are United States citizens.
Actions based on a desire for money are not connected to persecution based on
a protected category. See Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009).
Even if Lara-Castillo had established his membership in a cognizable social
group, no reasonable factfinder would be compelled to conclude that he
established a well-founded fear of future persecution on account of his purported
membership in that group. Thus, even if he is a member of a particular social
group defined as parents of United States citizen children, Lara-Castillo has not
shown that he would be harmed because of the shared characteristic that
establishes his membership in that group, i.e., because his children are United
States citizens. The harm he fears -- criminal violence based on financial
motives -- is not a basis for relief. See Shaikh, 588 F.3d at 864. Lara-Castillo’s
petition for review of the denial of his asylum and withholding of removal
applications is denied.
Lara-Castillo asks this court to remand his case to the IJ for consideration
of new evidence of hardship to his children, as they will suffer greater hardship
now that they are older. He also seeks consideration of new evidence of the
“marked deteriorations in the violent country conditions of Mexico.” The new
evidence he seeks to present is cumulative of earlier evidence of violent country
conditions in Mexico and fails to demonstrate that any acts of violence or
extortion that might befall Lara-Castillo and his children would amount to
persecution on account of a protected ground. Lara-Castillo’s request for a
remand is denied.
PETITION DISMISSED IN PART AND DENIED IN PART; REQUEST
FOR REMAND DENIED.
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