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Hernandez-Justo v. Garland ( 2021 )


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  • Case: 20-60109     Document: 00515946171         Page: 1     Date Filed: 07/21/2021
United States Court of Appeals
for the Fifth Circuit                           United States Court of Appeals
Fifth Circuit
FILED
July 21, 2021
No. 20-60109
Lyle W. Cayce
Summary Calendar                          Clerk
Rolando Hernandez-Justo,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 947 881
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Rolando Hernandez-Justo, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal
from the denial of withholding of removal and humanitarian asylum.
(Because he failed to exhaust his additional claims that the immigration judge
*
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opinion should not be published and is not precedent except under the limited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: 20-60109        Document: 00515946171       Page: 2    Date Filed: 07/21/2021
No. 20-60109
(IJ) erred in admitting evidence of his alienage and in determining he was
removable as charged, we lack jurisdiction to address them. See Wang v.
Ashcroft,
    260 F.3d 448
    , 452–53 (5th Cir. 2001).)
In considering the BIA’s decision (and the IJ’s, to the extent it
influenced the BIA), questions of law are reviewed de novo; factual findings,
for substantial evidence. E.g., Orellana-Monson v. Holder,
    685 F.3d 511
    , 517–
18 (5th Cir. 2012). Whether an applicant is eligible for withholding of
removal is a factual finding which, as noted above, is reviewed for substantial
evidence. See Chen v. Gonzales,
    470 F.3d 1131
    , 1134 (5th Cir. 2006) (citations
omitted). Under that standard, the BIA’s factual findings are conclusive
unless the record compels a contrary finding. Wang v. Holder,
    569 F.3d 531
    ,
536–37 (5th Cir. 2009).
Substantial evidence supports the BIA’s determining Hernandez
failed to demonstrate past persecution on account of his membership in the
particular social group of Mexican men who are albino and blind. Persecution
is not mere harassment or discrimination; it is “a specific term that ‘does not
encompass all treatment that our society regards as unfair, unjust, or even
unlawful or unconstitutional’”. Gjetani v. Barr,
    968 F.3d 393
    , 397 (5th Cir.
2020) (quoting Majd v. Gonzales,
    446 F.3d 590
    , 595 (5th Cir. 2006)).
Hernandez claims he was subjected to persecution when he was physically
attacked by his classmates and because witchcraft practitioners target
individuals suffering from albinism. But these incidents are not extreme
enough to compel a finding of past persecution in the light of his testimony
that: he was not seriously harmed by any of the attacks; he was never
personally targeted by witchcraft practitioners; and he was unaware of any
specific incidents where an individual suffering from albinism was targeted
by a witchcraft practitioner in Mexico. See Qorane v. Barr,
    919 F.3d 904
    , 909
(5th Cir. 2019).
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Case: 20-60109     Document: 00515946171         Page: 3     Date Filed: 07/21/2021
No. 20-60109
The BIA’s determining Hernandez failed to establish a well-founded
fear of future persecution is also supported by substantial evidence. To
demonstrate a well-founded fear of future persecution, applicant must
demonstrate “a subjective fear of persecution, and that fear must be
objectively reasonable”. Gjetani, 968 F.3d at 399 (quoting Eduard v. Ashcroft,
    379 F.3d 182
    , 189 (5th Cir. 2004)). Despite his assertion that he will be
targeted by witchcraft practitioners if forced to return to Mexico, the record
is devoid of evidence that witchcraft practitioners in Mexico target
individuals suffering from albinism. In fact, the evidence submitted by
Hernandez concerns the targeting of individuals suffering from albinism by
witchcraft practitioners in Africa, not Mexico.
Finally, because Hernandez failed to demonstrate that he was
subjected to past persecution, he is foreclosed from seeking humanitarian
asylum. See Nikpay v. Barr, 838 F. App’x 30, 35 (5th Cir. 2020); Shehu v.
Gonzales,
    443 F.3d 435
    , 441 (5th Cir. 2006) (denying petition for review on
humanitarian-asylum claim because applicant failed to demonstrate past
persecution).
DISMISSED in part; DENIED in part.
3