Walter Mata v. Eric Holder, Jr. , 547 F. App'x 505 ( 2013 )

Case: 13-60075 Document: 00512441762 Page: 1 Date Filed: 11/14/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 14, 2013
No. 13-60075
Summary Calendar Lyle W. Cayce
Clerk
WALTER OSWALDO MATA,
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. A201 180 793
Before HIGGINBOTHAM, DENNIS and GRAVES, Circuit Judges.
PER CURIAM:*
Walter Oswaldo Mata, a native and citizen of Mexico, appeals the decision
of the Board of Immigration Appeals (BIA) denying his requests for asylum and
withholding of removal. The BIA agreed with the immigration judge (IJ) that
Mata’s asylum application was untimely and that withholding of removal was
unavailable. Mata asserted that his former membership in the Tango Blast
gang qualified him for protected status as a member of a particular social group.
Additionally, the BIA rejected Mata’s claim of entitlement to withholding of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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removal based on an alleged protected social group status arising from Mata’s
relationship with his brother, who Mata alleged was a former member of the
Aztecas gang.
An alien must apply for asylum within one year of arriving in the United
States. 8 U.S.C. § 1158(a)(2)(B). The IJ held that the facts did not show that
Mata had timely filed his asylum application. The BIA agreed. We are without
jurisdiction to review a BIA decision affirming an IJ’s factual findings
concerning a challenge to the timeliness of an asylum application. See 8 U.S.C.
§ 1252(a)(2)(D); Zhu v. Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007);
Nakimbugwe v. Gonzales, 475 F.3d 281, 284 & n.1 (5th Cir. 2007).
An applicant for withholding of removal bears the burden of
demonstrating a clear probability that his life or freedom would be threatened
on account of race, religion, nationality, membership in a particular social group,
or political opinion if he is returned to his country of origin. 8 C.F.R.
§ 1208.16(b). A clear probability is one that establishes that it is more likely
than not that the applicant would be subjected to persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion
if he is returned to his country of origin. Campos-Guardado v. INS, 809 F.2d
285, 290 (5th Cir. 1987). Mata asserts that there exists a clear probability that
his life or freedom would be threatened on account of his membership in a
particular social group—former members of the Tango Blast gang—if he is
returned to Mexico.
Because substantial evidence supports the factual conclusion that Mata
“failed to meet [his] burden to prove that [he] personally would more likely than
not be subject to persecution” in Mexico, we do not consider the legal question
whether former members of the Tango Blast gang constitute “a protected social
group.” Hongyok v. Gonzales, 492 F.3d 547, 550 (5th Cir. 2007). That factual
conclusion is supported by the lack of corroboration of Mata’s testimony that he
had been a gang member and the lack of evidence to support the professed fear
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that the tattoos Mata sported would mark him as a former gang member. See
8 U.S.C. § 1231(b)(3)(C); 8 C.F.R. § 208.16(b). Mata—the only witness at his
merits hearing—testified that he had never returned to Mexico after entering
the United States at the age of five. Moreover, he agreed when asked on cross-
examination if it was correct that he was not familiar with Mexico because he
had spent most of his life in the United States. Given that a reasonable
factfinder would not have been compelled to find it clearly probable that Mata
would suffer persecution if removed to Mexico, we are required to leave
undisturbed the BIA’s ruling that he was not entitled to withholding of removal
on his claim of former gang membership. See Hongyok, 492 F.3d at 550-51.
Additionally, we reject the claim that remand is necessary because the
immigration courts failed to consider the claim that Mata will be targeted
because of his family relationship with his brother. Mata failed to raise this
claim before the IJ. “[A] court may review a final order of removal only if . . . the
alien has exhausted all his administrative remedies.” 8 U.S.C. § 1252(d)(1); see
Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Because Mata never
argued before the IJ that his family constituted a particular social group and
instead raised this request for relief for the first time as an allegation of error to
the BIA, he has failed to exhaust his administrative remedies, depriving us of
jurisdiction to review this claim.
Mata moves to supplement the record with copies of documents that were
not presented to the immigration courts. As we may not consider documents
that were not part of the administrative record, the motion is denied. See
8 U.S.C. § 1252(b)(4)(A).
PETITION DENIED IN PART AND DISMISSED IN PART; MOTION TO
SUPPLEMENT DENIED.
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