Gonzalez Martinez v. Garland ( 2022 )

Case: 21-60276 Document: 00516419379 Page: 1 Date Filed: 08/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2022
No. 21-60276 Lyle W. Cayce
Summary Calendar Clerk
Yelsi Bonifacia Gonzalez Martinez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A205 120 973
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Yelsi Bonifacia Gonzalez Martinez, a native and citizen of Honduras,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
dismissing her appeal from a decision of the Immigration Judge (IJ) denying
*
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opinion should not be published and is not precedent except under the limited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: 21-60276 Document: 00516419379 Page: 2 Date Filed: 08/04/2022
No. 21-60276
her application for withholding of removal. The Respondent has filed an
unopposed motion to remand.
We review for substantial evidence. See Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005). Additionally, we consider the IJ’s decision only
insofar as it influenced the BIA. See Singh v. Sessions, 880 F.3d 220, 224 (5th
Cir. 2018). “Under this deferential standard, we will grant a petition for
review only when the record evidence ‘compels’ a conclusion contrary to the
agency’s determination.” Gjetani v. Barr, 968 F.3d 393, 396 (5th Cir. 2020)
(quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005)); Wang v.
Holder, 569 F.3d 531, 536–37 (5th Cir. 2009).
In denying Gonzalez Martinez’s decision, the IJ concluded that her
PSG was not cognizable because it did not exist independently of the harm
asserted and that, while the Country Reports indicated “a level of
lawlessness in Honduras,” the evidence did not show that the Honduran
government either condoned the gang’s actions or could not protect
Gonzalez Martinez. The BIA agreed with the IJ’s conclusion that Gonzalez
Martinez had not shown that officials condoned the conduct or were
unwilling or unable to protect victims of gang violence. In her petition for
review, Gonzalez Martinez argues that her evidence showed that Honduran
authorities do not control the gangs and that her experience aligns with this,
as police took her report but did nothing further to help her.
To be eligible for withholding of removal, Gonzalez Martinez must
show that the government in her home country is “unable or unwilling to
protect” her. Gonzales-Veliz v. Barr, 938 F.3d 219, 228–29 (5th Cir. 2019).
Although Gonzalez Martinez maintains that her failure to pay the demanded
sums in 2003, and subsequent flight from the area,
caused gang members to injure her friend and kill two family members, she
has not shown that the evidence compels a conclusion that Honduran officials
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Case: 21-60276 Document: 00516419379 Page: 3 Date Filed: 08/04/2022
No. 21-60276
condone private violence or are unable or unwilling to protect her. The same
is true of her assertion that “nothing came of the report” that she filed with
the police after gang members destroyed her business because she could no
longer pay the money that they demanded. “A government is not ‘unable or
unwilling’ to protect against private violence merely because it has difficulty
solving crimes or anticipating future acts of violence.” Bertrand v. Garland,
36 F.4th 627, 632 (5th Cir. 2022).
The motion to remand filed in this matter does not raise an issue that
the BIA has not had a chance to consider. See INS v. Orlando Ventura, 537
U.S. 12, 16 (2002); see also Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2014).
Accordingly, the petition for review and the motion to remand are
DENIED.
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