Cornejo-Fernandez v. Garland ( 2021 )

Case: 20-60240 Document: 00515992042 Page: 1 Date Filed: 08/24/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 24, 2021
No. 20-60240 Lyle W. Cayce
Summary Calendar Clerk
Yessica Naida Cornejo-Fernandez; Gabriela Elizabeth
Cornejo-Fernandez,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A208 377 456; A208 377 457
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Yessica Naida Cornejo-Fernandez and her minor child Gabriela
Elizabeth Cornejo-Fernandez are natives and citizens of El Salvador. They
petition for review of a Board of Immigration Appeals’ (BIA) order
*
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opinion should not be published and is not precedent except under the limited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: 20-60240 Document: 00515992042 Page: 2 Date Filed: 08/24/2021
No. 20-60240
dismissing their appeal from an Immigration Judge’s (IJ) order denying
asylum and withholding of removal. The petition is denied.
The court reviews findings of fact, including the denial of asylum and
withholding of removal under the substantial evidence standard. Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Legal questions are reviewed de
novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
First, Cornejo-Fernandez argues that the BIA erred by affirming the
IJ’s finding that she failed to present a cognizable particular social group. A
particular social group must be made up of members who share a common
immutable characteristic, be defined with particularity, and be distinct from
other persons within society. See Pena Oseguera v. Barr, 936 F.3d 249, 251
(5th Cir. 2019). As the IJ noted, the particular social group “[Salvadoran]
women who fear violence and delinquency in their home country” lacks any
particularity and could be half of the population of El Salvador. See ROA.46.
This portion of the petition for review is denied. Id.Next, Cornejo-Fernandez argues that the BIA failed to provide
meaningful review of her appeal by not considering whether the particular
social group “Salvadoran women threatened by gang members because of
their status as crime witnesses” was cognizable. That particular social group
was not identified before the IJ. The BIA was not required to address this
particular social group for the first time on appeal. See Hernandez-De La Cruz
v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016). Accordingly, the BIA did not
abuse its discretion by refusing to consider this particular social group. See
id. There is nothing in the record demonstrating that the BIA failed to
provide meaningful review. Additionally, Cornejo-Fernandez failed to prove
that a lack of meaningful review resulted in her being “denied the
opportunity to be heard or present evidence.” Toscano-Gil v. Trominski, 210
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Case: 20-60240 Document: 00515992042 Page: 3 Date Filed: 08/24/2021
No. 20-60240
F.3d 470, 474 (5th Cir. 2000). Accordingly, these portions of the petition for
review are denied.
Cornejo-Fernandez also contends that because the IJ addressed the
BIA in his opinion, it is unclear whether the order is final or interlocutory and
that the IJ failed to fully develop the record. These issues were not raised
before the BIA. “Petitioners fail to exhaust their administrative remedies as
to an issue if they do not first raise the issue before the BIA, either on direct
appeal or in a motion to reopen.” Omari v. Holder, 562 F.3d 314, 318 (5th
Cir. 2009). Failure to exhaust an issue creates a jurisdictional bar. Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Because Cornejo-Fernandez did
not exhaust these issues before the BIA, these portions of the petition for
review are dismissed for lack of jurisdiction. Id.Lastly, Cornejo-Fernandez contends that the IJ failed to apply 8
C.F.R. § 1208.16(c)(3), which applies to CAT claims. See Martinez-Lopez v.
Barr, 943 F.3d 766, 772 (5th Cir. 2019). Section 1208.16(c)(3) requires that,
“[i]n assessing whether it is more likely than not that an applicant would be
tortured in the proposed country of removal, all evidence relevant to the
possibility of future torture shall be considered.” Cornejo-Fernandez did not
raise a CAT claim. See Eduard v. Ashcroft, 379 F.3d 182, 195 (5th Cir. 2004).
This portion of the petition for review is denied. Id.The petition for review is DENIED IN PART and DISMISSED
IN PART.
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