Paiz Sorto v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 18, 2022
• Docket: 19-60032
• Status: Unpublished

Opinion

Case: 19-60032 Document: 00516397723 Page: 1 Date Filed: 07/18/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 18, 2022 No. 19-60032 Summary Calendar Lyle W. Cayce Clerk

Maria Sebastiana Paiz Sorto; Darlyn Margarita Argueta Paiz,

Petitioners,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209 294 337 Agency No. A209 294 338

Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam:* Maria Sebastiana Paiz Sorto and her minor daughter, Darlyn Margarita Argueta Paiz, petition for review of the Board of Immigration Appeals’s decision affirming, without opinion, an order of the Immigration

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 19-60032 Document: 00516397723 Page: 2 Date Filed: 07/18/2022

No. 19-60032

Judge (IJ) denying their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). To the extent the petitioners challenge the BIA’s use of the summary affirmance procedure provided by 8 C.F.R. § 1003.1(e)(4), we lack jurisdiction to consider the unexhausted claim. See Martinez-Guevara v. Garland, 27 F.4th 353, 359-61 & n.9 (5th Cir. 2022). Given the BIA’s summary affirmance disposition, we review the IJ’s factual findings for substantial evidence. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003). Substantial evidence supports the IJ’s conclusion that the MS-13 gang’s threats were motivated by a desire to increase the wealth of the organization by extorting family-owned business like the petitioners’ and, as such, their membership in the proposed family-based particular social group was incidental, tangential, or subordinate to those motives. See, e.g., Ramirez- Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015); Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004); Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir. 2002). Because the nexus issue is dispositive of the petitioners’ asylum and withholding of removal claims, see Zhang, 432 F.3d at 344; Vazquez-Guerra v. Garland, 7 F.4th 265, 270-71 (5th Cir. 2021), cert. denied, 142 S. Ct. 1228 (2022), this court need not reach their arguments related to persecution and whether the government of El Salvador was able and willing to control their persecutors. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976). Regarding their CAT claim, the petitioners have failed to produce evidence that would compel a conclusion that the government of El Salvador would acquiesce in their torture. See Chen v. Gonzales, 470 F.3d 1131, 1138- 39 (5th Cir. 2006); see also Martinez Manzanares v. Barr, 925 F.3d 222, 229 (5th Cir. 2019); Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006). Accordingly, the petition for review is DENIED IN PART and DISMISSED IN PART for lack of jurisdiction.