Sanchez-Lira v. Garland ( 2022 )

Case: 20-60799 Document: 00516151542 Page: 1 Date Filed: 01/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 3, 2022
No. 20-60799
Summary Calendar Lyle W. Cayce
Clerk
Rider Sanchez-Lira,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 212 283
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Rider Sanchez-Lira, a native and citizen of Nicaragua, petitions for
review the Board of Immigration Appeals’ (BIA) affirming, without an
opinion, the denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). He asserts: the
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-60799
Immigration Judge (IJ) failed to recognize his asylum application was timely
because he established changed circumstances in Nicaragua; and he met his
burden of proving eligibility for asylum, withholding of removal, and CAT
protection.
Where, as here, the BIA affirms the IJ’s decision without issuing a
separate opinion, we review the IJ’s decision as the final agency decision. See
Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 1006). Legal conclusions
are reviewed de novo; factual findings, for substantial evidence. Orellana-
Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the
substantial-evidence standard, “petitioner has the burden of showing that the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion”. Id. at 518 (citation omitted).
Our court lacks jurisdiction to review the IJ’s finding Sanchez’ asylum
application was untimely. See Zhu v. Gonzales, 493 F.3d 588, 594–96 & n.31
(5th Cir. 2007) (explaining when IJ examined facts and circumstances in
concluding petitioner did not qualify for exception to deadline, our court
cannot review decision). Further, Sanchez’ lack-of-notice claim before the
IJ has been abandoned in his petition for review, and his lack-of-notice and
changed-circumstances claims were both unexhausted before the BIA, either
on direct appeal or in a motion to reopen. See Omari v. Holder, 562 F.3d 314,
318–19 (5th Cir. 2009) (explaining “[p]etitioners fail to exhaust their
administrative remedies as to an issue if they do not first raise the issue before
the BIA”).
To qualify for withholding of removal, “applicant must demonstrate
a clear probability of persecution on the basis of race, religion, nationality,
membership in a particular social group, or political opinion”. Chen v.
Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006) (citation omitted). Sanchez has
abandoned, by failing to brief, any challenge to the findings that his proposed
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No. 20-60799
social groups were not cognizable and that he suffered no past persecution.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (explaining issues
not raised and briefed are unexhausted and, therefore, abandoned). Further,
Sanchez has not shown the evidence compels the conclusion he more likely
than not will suffer future persecution in Nicaragua on account of his political
opinion. See Chen, 470 F.3d at 1134, 1138.
Concerning his request for CAT relief, Sanchez’ brief to the BIA
neither asserted he would be tortured nor challenged the IJ’s reasons for
denying his CAT claim. Accordingly, his challenges to that denial are
unexhausted and we lack jurisdiction to review the denial. Wang v. Ashcroft,
260 F.3d 448, 452–53 (5th Cir. 2001).
DISMISSED in part; DENIED in part.
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