Mendez Maldonado v. Garland ( 2022 )

Case: 19-60523 Document: 00516157616 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 19-60523 Lyle W. Cayce
Summary Calendar Clerk
Marcela J. Mendez Maldonado,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A215 706 058
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Marcela J. Mendez Maldonado, a native and citizen of El Salvador,
petitions for review of an order by the Board of Immigration Appeals (BIA)
dismissing her appeal from the denial of her application for asylum and
withholding of removal.
*
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opinion should not be published and is not precedent except under the limited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. 19-60523
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial
evidence, and legal determinations are reviewed de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
To establish eligibility for asylum, an applicant must prove that she is
unwilling or unable to return to her home country “because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” Sharma v.
Holder, 729 F.3d 407, 411 (5th Cir. 2013) (quoting 8 U.S.C.
§ 1101(a)(42)(A)).
Mendez Maldonado contends that the BIA erred in determining that
her proposed social group of Salvadoran women was not cognizable. 1 “[A]
particular social group must: (1) consist of persons who share a common
immutable characteristic; (2) be defined with particularity; and (3) be socially
visible or distinct within the society in question.” Gonzales-Veliz v. Barr, 938
F.3d 219, 229 (5th Cir. 2019) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
227, 237 (BIA 2014)). The category “Salvadoran women” “encompasses a
wide swath of society crossing many political orientations, lifestyles, and
identifying factors.” Orellana-Monson v. Holder, 685 F.3d 511, 521-22 (5th
Cir. 2012); Miranda Fuentes v. Garland, 844 F. App’x 779, 780 (5th Cir.
1
The Government requests, as they did in a previous motion, that we remand this
case to allow the BIA to decide this question. This Court previously denied the
Government’s motion to remand. Mendez Maldonado correctly notes in her brief that the
BIA did address this issue and so remand is inappropriate. Accordingly, we address the
issue here.
2
Case: 19-60523 Document: 00516157616 Page: 3 Date Filed: 01/07/2022
No. 19-60523
2021). 2 Absent some additional showing, for instance that Salvadoran
women nationwide are persecuted because of their gender or a characteristic
particular to their gender, Mendez Maldonado’s proposed social group is not
particular. See Chavez-Chilel v. Att’y Gen. United States, --- F. 4th ---, 2021
WL 5830338, at *4 (3d Cir. 2021). Accordingly, the BIA did not err in
determining that the category Salvadoran women was not cognizable as a
particular social group.
Mendez Maldonado next challenges the BIA’s determination that she
failed to demonstrate a nexus between her family membership and the
suffered persecution. In determining whether there is a nexus, we examine
“whether the protected ground is one central reason motivating the
persecutor, not the persecuted.” Vazquez-Guerra v. Garland, 7 F.4th 265, 269
(5th Cir. 2021). Despite her assertions to the contrary, Mendez Maldonado’s
testimony reflects that she was harassed by and sexually assaulted by a MS-
13 gang member because he wanted her to be his girlfriend. In fact, there is
nothing in the record to suggest that the gang members invaded her home or
attempted to harm her because of her relationship with her sister.
Accordingly, the BIA did not err in determining that she failed to
demonstrate a nexus between her family membership and the suffered
persecution.
Because the BIA did not err in determining that Mendez Maldonado
was not persecuted on account of a protected ground, we need not address
her argument that the Salvadoran government was unable or unwilling to
protect her or that she could not safely relocate within El Salvador. See
2
Although an unpublished opinion issued on or after January 1, 1996, is generally
not controlling precedent, it may be considered as persuasive authority. See Ballard v.
Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
3
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No. 19-60523
Flores-Moreno v. Barr, 971 F.3d 541, 545 (5th Cir. 2020), cert. denied, 141 S.
Ct. 1238 (2021).
Finally, because Mendez Maldonado “failed to establish the less
stringent ‘well-founded fear’ standard of proof required for asylum relief,”
she cannot meet the more stringent burden for obtaining withholding of
removal, and therefore she is unable to demonstrate that the BIA erred in
disposing of this claim. See Dayo v. Holder, 687 F.3d 653, 658–59 (5th Cir.
2012) (quoting Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir. 2008)).
Based upon the foregoing, the petition for review is DENIED.
4