Montano v. Garland ( 2021 )

Case: 20-60378 Document: 00515799258 Page: 1 Date Filed: 03/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2021
No. 20-60378
Summary Calendar Lyle W. Cayce
Clerk
Sandra Cecilia Montano; James Wilfredo Hernandez-
Montano,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 905 167
BIA No. A208 905 168
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Sandra Cecilia Montano and her minor son, James Wilfredo
Hernandez-Montano, are natives and citizens of El Salvador. They petition
for review of the decision of the Board of Immigration Appeals (BIA)
*
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opinion should not be published and is not precedent except under the limited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: 20-60378 Document: 00515799258 Page: 2 Date Filed: 03/29/2021
No. 20-60378
dismissing their appeal of an immigration judge’s (IJ) denial of their
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).
We review the decision of the BIA and consider the IJ’s decision only
to the extent it influenced the BIA. Wang v. Holder, 569 F.3d 531, 536 (5th
Cir. 2009). The BIA’s legal determinations are reviewed de novo; findings
of fact are reviewed for substantial evidence. Ghotra v. Whitaker, 912 F.3d
284, 287–88 (5th Cir. 2019).
The BIA concluded that the petitioners failed to appeal the IJ’s
finding that there was no evidence to support an asylum claim based on any
political opinion held by Montano. The petitioners do not challenge that
conclusion here. Accordingly, they have abandoned any argument related to
this issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
The petitioners challenge the BIA’s denial of their request for asylum
and withholding of removal based on Montano’s membership in the
particular social group of Salvadoran women “who have suffered domestic
violence and the government has failed to protect them.” To establish
membership in a particular social group, a petitioner must demonstrate that
she is a member “of a group of persons that share a common immutable
characteristic that they either cannot change or should not be required to
change because it is fundamental to their individual identities or
consciences.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)
(cleaned up). We find no legal error in the BIA’s analysis of the asylum claim,
and we conclude that substantial evidence supports the BIA’s finding that
the petitioners are ineligible for asylum because Montano’s proposed
particular social group does not meet these requirements. See Gonzales-Veliz
v. Barr, 938 F.3d 219, 229–34 (5th Cir. 2019); see also Orellana-Monson, 685
F.3d at 517–18.
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Case: 20-60378 Document: 00515799258 Page: 3 Date Filed: 03/29/2021
No. 20-60378
“Because the level of proof required to establish eligibility for
withholding of removal is higher than that required for asylum, failure to
establish eligibility for asylum is dispositive of claims for withholding of
removal.” Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006); see also
Munoz-Granados v. Barr, 958 F.3d 402, 408 (5th Cir. 2020). We therefore
reject the petitioners’ contention that the BIA erred by concluding that their
claim for withholding of removal fell with their claim for asylum.
Finally, the petitioners disagree with the BIA’s factual finding that
they are ineligible for protection under the CAT. They maintain that
Montano provided credible testimony to support her argument that her
former domestic partner would torture her upon her return to El Salvador
and that Salvadoran officials would acquiesce in that torture. We may not
disturb the BIA’s finding, however, because the evidence does not compel a
conclusion contrary to that reached by the BIA. See 8 U.S.C.
§ 1252(b)(4)(B); see also Chen v. Gonzales, 470 F.3d 1131, 1134, 1143 (5th Cir.
2006).
The petition for review is DENIED.
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