Nemias Vasquez-Ajpacaja v. Matthew Whitaker ( 2018 )

Case: 17-60125 Document: 00514736050 Page: 1 Date Filed: 11/26/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60125 November 26, 2018
Summary Calendar
Lyle W. Cayce
Clerk
NEMIAS JOSE VASQUEZ-AJPACAJA; ESTELA MARIA AJPACAJA-
CASTRO,
Petitioners
v.
MATTHEW G. WHITAKER, ACTING U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 273 238
BIA No. A208 273 239
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Estela Maria Ajpacaja-Castro and her minor son Nemias Jose Vasquez-
Ajpacaja petition for review of the decision by the Board of Immigration
Appeals (BIA) to affirm the immigration judge’s (IJ) denial of asylum and
withholding of removal. We dismiss the petitions in part for lack of jurisdiction
and deny the petitions in part on the merits.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-60125 Document: 00514736050 Page: 2 Date Filed: 11/26/2018
No. 17-60125
Ajpacaja-Castro and her son claimed persecution on account of her
membership in a particular social group. The group they identified to the IJ
was “indigenous people threatened with death.” They now identify that group
as “indigenous people” and possibly “indigenous women.” To the extent that
their reformulated particular social group materially differs from the group
they identified to the IJ, and to the extent that they failed to exhaust their
administrative remedies on this group, we lack jurisdiction to consider their
petitions for review. See 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314,
318-19, 322 (5th Cir. 2009); Hongyok v. Gonzales, 492 F.3d 547, 550 (5th Cir.
2007).
To the extent that their reformulated particular social group is
exhausted, and even if indigenous people are a cognizable particular social
group, substantial evidence supports the IJ’s finding that there was no nexus
between the claimed past persecution and Ajpacaja-Castro’s ethnicity. See
Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Ajpacaja-Castro and her
son, who are represented by counsel, have inadequately briefed the issue of
future persecution. See Garrido-Morato v. Gonzales, 485 F.3d 319, 321 n.1 (5th
Cir. 2007). Their failure to establish eligibility for asylum is dispositive of their
eligibility for withholding of removal. See Majd v. Gonzales, 446 F.3d 590, 595
(5th Cir. 2006). Accordingly, the petitions for review are denied in part on the
merits.
DISMISSED IN PART for lack of jurisdiction; DENIED IN PART.
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