Cunza-Pashaca v. Garland ( 2023 )

Case: 22-60472 Document: 00516867114 Page: 1 Date Filed: 08/22/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-60472 August 22, 2023
Summary Calendar Lyle W. Cayce
____________ Clerk
Saira Yanira Cunza-Pashaca; Edgardo Josue Valencia-
Cunza,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. A215 929 763,
A215 929 764
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Petitioner Saira Yanira Cunza-Pashaca, a native and citizen of El
Salvador, entered the United States illegally with her son in 2018. She
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
that dismissed her appeal and affirmed the immigration judge’s (“IJ”) denial
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60472
of her claims for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). 1
I. Factual and Procedural Background
During her asylum hearing before the IJ, Cunza-Pashaca proposed two
particular social groups (“PSGs”): (1) El Salvadoran women and (2) El
Salvadoran women who are seen as property by their spouse. The IJ allowed
Cunza-Pashaca to go forward with the first PSG but not the second because
she had failed to file a brief identifying her PSGs 30-days prior to the hearing
as ordered by the IJ. The IJ also stated that there was no indication in Cunza-
Pashaca’s asylum application that she was seeking relief based on the PSG of
El Salvadoran women who are seen as property by their spouse. The IJ then
turned to the merits of Cunza-Pashaca’s asylum claim and concluded that
she had failed to establish the requisite nexus between the harm she suffered
in El Salvador and her PSG of El Salvadoran women.
Prior to presenting testimony, Cunza-Pashaca moved to have her
son’s case severed from hers. Her attorney explained that the state of
Louisiana had issued the ruling needed for Cunza-Pashaca’s son to obtain
special juvenile status on January 18, 2019. The IJ questioned the timeliness
of the request given that special status had been granted months prior to the
scheduled hearing, yet no motion to sever had been made until the day of the
hearing. The DHS opposed the motion. The IJ denied the motion,
determining that it was “simply a delaying tactic” given that there was
“ample opportunity” to timely file a motion. The IJ questioned “[w]hy this
matter couldn’t have been brought forward within a timely fashion, certainly
_____________________
1
Because Cunza-Pashaca is the lead petitioner and her son’s claims for
immigration relief are derivative of her claim, we will refer only to Cunza-Pashaca unless
otherwise specified.
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within the 15 days envisioned by the practice manual, much less the 60-day
continuance deadline” and ultimately found that there was “no good cause”
to allow the untimely motion to sever.
Cunza-Pashaca appealed the IJ’s decision to the BIA and renewed her
request to sever her son’s case from her appeal. The BIA considered only the
PSG of El Salvadoran women as the basis for Cunza-Pashaca’s claim for relief
from removal, concluding that Cunza-Pashaca had not challenged the IJ’s
refusal to evaluate the second PSG of El Salvadoran women who are seen as
property by their spouse. The BIA agreed with the IJ’s determination that no
nexus existed between the harm Cunza-Pashaca suffered and her
membership in a PSG. The BIA explained that Cunza-Pashaca “was [the]
victim of private criminal activity at the hands of her husband.” The BIA
determined that she had not met her burden of establishing eligibility for
asylum or withholding of removal. Because the IJ’s nexus finding was
dispositive, the BIA did not consider Cunza-Pashaca’s remaining arguments
related to her eligibility for asylum and withholding of removal. Cunza-
Pashaca timely appealed.
II. Law and Analysis
This court reviews the BIA’s decision and considers the IJ’s decision
only to the extent it influenced the BIA. Orellana-Monson v. Holder, 685 F.3d
511, 517 (5th Cir. 2012). The BIA’s factual findings are reviewed for
substantial evidence, and its legal conclusions are reviewed de novo. Id. at 517–
18. This court will not reverse the BIA’s factual findings unless the evidence
compels a contrary conclusion. Id. at 518.
A. The BIA’s Asylum and Withholding of Removal
Determination
On appeal, Cunza-Pashaca contends that she is eligible for asylum and
withholding of removal based on her membership in the PSG of “El
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Salvadoran women seen as property by their spouse.” However, Cunza-
Pashaca did not challenge the IJ’s refusal to consider this PSG in her appeal
to the BIA. Therefore, the government contends that this court lacks
jurisdiction to consider the IJ’s refusal to consider the PSG of “El Salvadoran
women seen by property by their spouse,” citing this court’s long-held view
that the exhaustion requirement under 8 U.S.C. § 1252(d)(1) is jurisdictional
in nature.
Recently, the U.S. Supreme Court granted certiorari to consider
whether the exhaustion requirement is jurisdictional and whether a new error
by the BIA must be raised in a motion to reconsider. Santos-Zacaria v.
Garland, 22 F.4th 570, 573 (5th Cir. 2022), cert. granted, 143 S. Ct. 82 (2022).
In Santos-Zacaria v. Garland, the Supreme Court overruled our circuit’s view
that the exhaustion requirement of 8 U.S.C. § 1252(d)(1) is jurisdictional in
nature. 143 S. Ct. 1103, 1120 (2023). The Court held that the exhaustion
requirement is instead a claim-processing rule. Id. at 1113–14. However,
neither the Supreme Court nor our court has decided whether § 1252(d)(1)
is a mandatory claim-processing rule. See Carreon v. Garland, 71 F.4th 247,
257 n.11 (5th Cir. 2023). We previously held that “[a] claim-processing rule
requiring parties to take certain procedural steps in, or prior to, litigation,
may be mandatory in the sense that a court must enforce the rule if timely
raised.” Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843, 1844 (2019) (citation
omitted). Since the government here properly raised exhaustion, we need not
decide whether § 1252(d)(1) requires us to do so. Id. at 1849. We agree that
the issue is unexhausted and therefore decline to reach it.
Cunza-Pashaca also states, but does not argue beyond stating the
issue, that she is eligible for asylum and withholding of removal based on her
membership in the PSG of El Salvadoran women, which was the only
proposed social group considered by the BIA. She has therefore abandoned
that issue. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008)
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(stating that a petitioner fails to brief an issue by merely listing it without
further argument); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003)
(stating that issues not briefed are abandoned). Because the BIA’s no-nexus
finding is dispositive and there were no other administratively-exhausted
protected grounds before the BIA, Cunza-Pashaca cannot show that she is
eligible for asylum or withholding of removal. See Majd, 446 F.3d at 595.
B. Cunza-Pashaca’s Motion to Sever
Cunza-Pashaca asserts that the denial of her motion to sever
constituted an abuse of discretion. She does not dispute the fact that her
attorney waited until the day of the hearing on the merits of her asylum
application to make an oral motion to sever her son’s case, despite the
requirement in Chapter 3.1(b)(i)(A) of the Immigration Court Practice
Manual that “filings must be submitted at least fifteen (15) days in advance
of the hearing if requesting a ruling prior to the hearing.” See
https://tinyurl.com/yckrpuhr (Chapter 3.1(b)(i)(A)). Rather, Cunza-
Pashaca contends that the IJ should have ignored the untimeliness of the
motion and “focused on the merits.” Cunza-Pashaca maintains that such
motions are routinely brought the day of the hearing in the New Orleans
immigration court and that the IJ erred in holding that the motion was a form
of “gamesmanship” or “a delaying tactic.” The government counters that
this court lacks jurisdiction to consider the IJ’s denial of Cunza-Pashaca’s
motion to sever her son’s claims from her case.
This court reviews questions of law regarding jurisdiction de novo.
Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006) (citations
omitted). Contrary to the government’s assertion, we have jurisdiction to
review that question under the abuse-of-discretion standard. See Khan v.
Holder, 353 F. App’x 897, 899 n.3 (5th Cir. 2009) (reviewing the denial of a
severance for abuse of discretion); see also Witter v. INS, 113 F.3d 549, 555
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(5th Cir. 1997) (reviewing the disposition of a motion for continuance for
abuse of discretion). Under the abuse-of-discretion standard, an agency
decision will be upheld “so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so aberrational that
it is arbitrary rather than the result of any perceptible rational approach.”
Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007) (internal
quotation marks and citation omitted). “The BIA acts arbitrarily when it
disregards its own precedents and policies without giving a reasonable
explanation for doing so.” Id. (internal quotation marks and citation
omitted).
Cunza-Pashaca has not satisfied her burden of showing that the IJ and
the BIA acted in an arbitrary and capricious manner in denying her request
to sever her son’s case. See Galvez-Vergara, 484 F.3d at 801. The IJ noted the
15-day deadline prior to finding “no good cause” for Cunza-Pashaca’s
untimely motion to sever. Again, Cunza-Pashaca does not meaningfully
challenge the IJ’s reliance on the filing deadline set out in the Immigration
Court Practice Manual, instead claiming that the IJ should have ignored the
untimeliness of the motion and “focused on the merits.” Cunza-Pashaca also
fails to address the BIA’s determination that, despite the DHS’s approval of
her son’s petition for special immigration juvenile status, the “priority date
[was] not current, he [did] not have an immediately available visa number,
and it [was] not clear when a visa number [would] become available to him,”
and that therefore there was no basis to grant Cunza-Pashaca’s renewed
motion to sever. We conclude that Cunza-Pashaca has not shown that the
agency acted in an arbitrary and capricious manner in denying her request to
sever her son’s case. See Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th
Cir. 2007).
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C. The BIA’s Denial of CAT Relief
Cunza-Pashaca claims that the BIA erred in denying CAT relief
because it is more likely than not that she “would be subjected to severe
physical pain or death” at her husband’s hand if removed to El Salvador. She
also appears to argue that, given her husband’s family connections within the
police force, she would be harmed and left unprotected in El Salvador.
Even though Cunza-Pashaca described physical abuse by her husband,
the record does not compel the reversal of the BIA’s determination that such
abuse did not rise to the level of torture, see Orellana-Monson, 685 F.3d at 518.
“Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of cruel, inhuman or degrading treatment or punishment
that do not amount to torture.” 8 C.F.R. § 1208.18(a)(2). Neither does the
record likewise compel the reversal of the BIA’s adoption of the IJ’s findings
with regard to government acquiescence. See Orellana-Monson, 685 F.3d at
518. Cunza-Pashaca’s own testimony reflects that she was able to report her
husband’s abuse to a patrol officer in El Salvador. Her “speculation that the
police might not prevent” her husband’s abuse is insufficient to support her
CAT claim. See Garcia v. Holder, 756 F.3d 885, 892 (5th Cir. 2014).
III. Conclusion
Cunza-Pashaca’s petition for review is DENIED.
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