Mirian Martinez-Martinez v. William Barr, U ( 2020 )

Case: 18-60337 Document: 00515612846 Page: 1 Date Filed: 10/22/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2020
No. 18-60337
Lyle W. Cayce
Clerk
MIRIAN JANNETTE MARTINEZ-MARTINEZ; MIRIAM YAJAIRA
MARTINEZ-MARTINEZ; NELSON JEOVANNY MARTINEZ-MARTINEZ,
Petitioners,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 182 471
BIA No. A206 182 468
BIA No. A206 182 469
Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:*
Mirian Jannette Martinez-Martinez, a native and citizen of El Salvador,
on behalf of herself and her two minor children, seeks review of the dismissal
by the Board of Immigration Appeals (BIA) of her appeal from the immigration
judge’s (IJ) denial of petitioners’ applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
*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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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No. 18-60337
Martinez-Martinez concedes that she has abandoned her claim for protection
under the CAT.
This court reviews the final decision of the BIA and also considers the
IJ’s decision to the extent that it influenced the determination of the BIA.1
Findings of fact are reviewed for substantial evidence and questions of law are
reviewed de novo.2 “Under the substantial evidence standard, reversal is
improper unless we decide ‘not only that the evidence supports a contrary
conclusion, but also that the evidence compels it.’”3
Martinez-Martinez argues for the first time on appeal that her original
notice to appear (NTA) did not contain the time and place of her removal
proceedings, and, therefore, in light of the decision in Pereira v. Sessions,4 the
immigration court lacked subject matter jurisdiction over her proceedings.
Martinez-Martinez failed to raise the arguments about the NTA before the
BIA; consequently, she did not properly exhaust this issue and we lack
jurisdiction to review it.5 Thus, this claim is dismissed for lack of jurisdiction.
Martinez-Martinez relies on Arce-Vences v. Mukasey,6 in which this court
recognized that because “exhaustion is not required when administrative
remedies are inadequate[,] . . . [o]ur jurisdiction is . . . not precluded by an
alien’s failure to raise before the [BIA] a claim that the [BIA] has no power or
authority to remedy.”7 For the Arce-Vences exception to apply, Martinez-
Martinez must point to Fifth Circuit law existing at the time her case was
1 Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).
2 Id. at 594.
3 Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (quoting Zhao v. Gonzales, 404
F.3d 295, 306 (5th Cir. 2005)); see 8 U.S.C. § 1252(b)(4)(B).
4 138 S. Ct. 2105 (2018).
5 See Flores-Abarca v. Barr, 937 F.3d 473, 477-78 (5th Cir. 2019).
6 512 F.3d 167 (5th Cir. 2007).
7 Id. at 172 (internal quotation marks omitted) (quoting Ramirez-Osorio v. Immig. &
Naturalization Serv., 745 F.2d 937, 939 (5th Cir. 1984)).
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pending before the BIA that would preclude the BIA from finding in her favor
on that particular issue.8 Martinez-Martinez has not done so, and the Arce-
Vences exception does not apply here.
As to Martinez-Martinez’s asylum application, she does not challenge the
BIA’s conclusion that her asylum application was untimely because it was filed
more than one year after her entry into the United States.9 She has therefore
abandoned any challenge to the BIA’s dismissal of her asylum application.10
Additionally, Martinez-Martinez did not raise her argument that she is
entitled to “humanitarian asylum” with the BIA. Accordingly, she failed to
exhaust this argument, and this court lacks jurisdiction to consider it.11
Martinez-Martinez argues in her application for withholding of removal
that her testimony that gang members in her home country subjected her to,
among other things, extortion, threats, theft, and assaults established that she
had endured past persecution and that she would endure persecution if she
returned. An applicant for withholding of removal “must demonstrate a ‘clear
probability’ of persecution upon return” to her native country.12 Where the
“fear of future threat” is “unrelated to the past persecution,” a clear probability
of persecution means that it is “more likely than not” that her “life or freedom
would be threatened . . . on account of [her] “race, religion, nationality,
membership in a particular social group, or political opinion.”13 In this case,
the record does not compel the conclusion that Martinez-Martinez suffered
8 See Flores-Abarca, 937 F.3d at 478 n.1 (citing Arce-Vences, 512 F.3d at 172)
(“[E]xhaustion is not required when the BIA has no power to grant the requested relief
because of binding circuit precedent.”).
9 See 8 U.S.C. § 1158(a)(2)(B).
10 See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per curiam).
11 See Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009).
12 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (quoting Faddoul v.
Immig. & Naturalization Serv., 37 F.3d 185, 188 (5th Cir 1994)).
13 8 C.F.R. §§ 1208.16(b), (b)(1)(iii); 8 U.S.C. § 1231(b)(3)(A).
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No. 18-60337
past persecution or that there exists a clear probability that she would be
persecuted upon return to El Salvador.14
Accordingly, Martinez-Martinez’s petition for review is DENIED IN
PART and DISMISSED IN PART for lack of jurisdiction.
14 See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
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