Velasquez-De Hernandez v. Garland

Case: 20-60104 Document: 00516164870 Page: 1 Date Filed: 01/12/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

January 12, 2022

No. 20-60104

Lyle W. Cayce

Clerk Maria Elisabet Velasquez-De Hernandez; Claudia Georgina Hernandez-Velasquez; Raul Edgardo Hernandez-Velasquez,

Petitioners, versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals

Agency No. A202 030 918 Agency No. A202 030 919 Agency No. A206 759 310

Before Jolly, Willett, and Englehardt, Circuit Judges.

Per Curiam:*

Maria Elisabet Velasquez-De Hernandez is a native and citizen of El Salvador. In 2014, she and her children—Claudia and Raul—were charged

Case: 20-60104 Document: 00516164870 Page: 2 Date Filed: 01/12/2022

No. 20-60104 with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as aliens present in the United States without being admitted or paroled. Velasquez-De Hernandez later filed an application for asylum and withholding of removal based on membership in a particular social group, which her attorney defined as “family.” She listed Claudia as a derivative beneficiary of her asylum application. Raul, on the other hand, filed an individual asylum application that mirrored his mother’s. The family’s cases were later consolidated.

Petitioner 1 now seeks review of the Board of Immigration Appeals’ order affirming the immigration judge’s denial of her application for asylum and withholding of removal. She argues (1) substantial evidence does not support the BIA’s conclusion that she failed to show a sufficient nexus between persecution and her putative social group, (2) her family-based social group is sufficiently cognizable, and (3) if all else fails, she is entitled to humanitarian asylum or protection under the Convention Against Torture.

None of Petitioner’s arguments merit relief. First, she has not shown that the evidence presented “‘was so compelling that no reasonable factfinder could fail to find’ the nexus requirement satisfied.” Berrios-Bruno Garland, No. 18-60276, 2021 WL 3624766, at *4 (Aug. 16, 2021) (per curiam) (citing INS v. Elias-Zacarias, 502 U.S. 478, 482–84 (1992)); accord Orellana- Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012)). Substantial evidence supports the BIA’s conclusion that Salvadorian gang members were not sufficiently motivated by Petitioner’s family ties when targeting her as a part of their criminal enterprise. See, e.g., Vazquez-Guerra v. Garland, 7 F.4th 265, 270 (5th Cir. 2021). Though Petitioner has undoubtedly endured tragic Case: 20-60104 Document: 00516164870 Page: 3 Date Filed: 01/12/2022

No. 20-60104 circumstances, we are not permitted “to re-weigh evidence or substitute our own factual determinations” where substantial evidence supports the agency’s nexus conclusion. Berrios-Bruno, 2021 WL 3624766, at *4 (citing Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)). We are here confronted with such a case. 2 See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).

Second, we lack jurisdiction to consider Petitioner’s remaining claims—that she is entitled to either humanitarian asylum or protection under the Convention Against Torture—because she did not exhaust her administrative remedies. See, e.g., Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). Petitioner did not invoke the Convention Against Torture before the IJ, nor did she urge humanitarian asylum before the BIA. We cannot therefore consider these claims.

Finally, we pause to note that Petitioner’s failure to establish eligibility for asylum or withholding of removal necessarily defeats her children’s claims, which are dependent on the same facts and circumstances.

For these reasons, the petition is DENIED in part and DISMISSED in part for lack of jurisdiction.