Luis Cifuentes-Escalante v. Loretta Lynch , 640 F. App'x 599 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2824
___________________________
Luis Francisco Cifuentes-Escalante
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: March 30, 2016
Filed: April 4, 2016
[Unpublished]
____________
Before LOKEN, BYE, and KELLY, Circuit Judges.
____________
PER CURIAM.
Guatemalan citizen Luis Francisco Cifuentes-Escalante petitions for review of
an order of the Board of Immigration Appeals (BIA) upholding an immigration
judge’s (IJ’s) denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT).
We initially note that, under the circumstances of this case, the denial of asylum
is not subject to review. See Bin Jing Chen v. Holder, 776 F.3d 597, 601 (8th Cir.
2015) (appellate court lacks jurisdiction to review determination that asylum
application is untimely unless petition seeks review of constitutional claims or
conclusions of law); see also Rodriguez-Mercado v. Lynch, 809 F.3d 415, 420 (8th
Cir. 2015) (when issue is abandoned before BIA, it is not preserved for appellate court
review). As to the denial of Cifuentes-Escalante’s other claims, we review both the
BIA’s and IJ’s decisions together, as the BIA adopted and affirmed the IJ’s decision,
but added its own reasoning. See Quinonez-Perez v. Holder, 635 F.3d 342, 344 (8th
Cir. 2011) (decisions are reviewed to determine if substantial evidence supports them,
and are reversed only when petitioner shows evidence is so compelling that no
reasonable factfinder could fail to find in his favor). We conclude that Cifuentes-
Escalante was properly denied withholding of removal, as he did not show a clear
probability that his life or freedom would be threatened in Guatemala because of his
membership in a particular social group that he identified. See id. at 345 (to prevail,
alien had to show past persecution based on protected ground, creating rebuttable
presumption that removal would threaten his life or freedom, or that it is more likely
than not he would be persecuted upon removal on account of that protected ground).
Finally, we conclude that because Cifuentes-Escalante’s proposed basis for CAT relief
did not materially differ from that which he identified as the basis for his other claims,
an independent analysis of his CAT claim is not required. See Che v. Mukasey, 532
F.3d 778, 783 (8th Cir. 2008) (where applicant presents no evidence he would face
torture for reasons unrelated to his applications for asylum and withholding of
removal, independent analysis of his CAT claim need not be conducted). The petition
for review is denied.
______________________________
-2-