Esteban Poscual-Jimenez v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60550 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 04/17/2017 [15-60550]

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Date Filed: 02/22/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60550
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
February 22, 2017
Lyle W. Cayce
Clerk

ESTEBAN POSCUAL-JIMENEZ,
Petitioner
v.
JEFF SESSIONS, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 006 221
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Through counsel, Esteban Poscual-Jimenez, a native and citizen of
Mexico, petitions for review of the decision of the Board of Immigration Appeals
(BIA) affirming the denial of his applications for withholding of removal and
protection under the Convention Against Torture (CAT).

We review the

decision of the BIA and will consider the immigration judge’s decision only to
the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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2009). Questions of law are reviewed de novo and findings of fact are reviewed
for substantial evidence. Id. Under the substantial evidence standard, “[t]he
alien must show that the evidence was so compelling that no reasonable
factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th
Cir. 2009).
Poscual-Jimenez’s brief is virtually identical to the brief he filed with the
BIA. Furthermore, the arguments section contains only conclusory assertions
and no citations to the administrative record. See FED. R. APP. P. 28(a)(8)(A).
Because Poscual-Jimenez has not meaningfully challenged the BIA’s reasoning
that he was ineligible for withholding of removal and CAT protection, he is
deemed to have waived those claims. See Chambers v. Mukasey, 520 F.3d 445,
448 n.1 (5th Cir. 2008). Even if we were to overlook the waiver issue, PoscualJimenez’s arguments regarding his request for withholding of removal and
CAT protection are without merit.
In order to be entitled to withholding of removal, an alien must show a
clear probability of persecution, i.e., that it is more likely than not that his life
or freedom will be threatened by persecution based on one of five enumerated
grounds, including membership in a particular social group. Roy v. Ashcroft,
389 F.3d 132, 138 (5th Cir. 2004); 8 C.F.R. § 208.16(b). To show persecution
based on membership in a particular social group, an alien must show that he
is a member “of a group of persons that share a common immutable
characteristic that they either cannot change or should not be required to
change because it is fundamental to their individual identities or consciences.”
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal
quotation marks and citation omitted). A particular social group is one that
has “social visibility,” meaning that “members of a society perceive those with
the characteristic in question as members of a social group,” and

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“particularity,” meaning that the group “can accurately be described in a
manner sufficiently distinct that the group would be recognized, in the society
in question, as a discrete class of persons.” Id. (internal quotation marks and
citation omitted).
We have declined to recognize business owners or people connected by
economic status as a protected group. Castillo-Enriquez v. Holder, 690 F.3d
667, 668 (5th Cir. 2012).

A person’s employment is also not generally

considered to be an immutable characteristic.

See Mwembie v. Gonzales,

443 F.3d 405, 414-15 (5th Cir. 2006). Thus, to the extent Poscual-Jimenez
claims he is a member of a particular social group based on the perception that
he and his family are members of a taxi association and own land and taxi
companies in Mexico, his challenge is unavailing. Furthermore, the record
reflects that the Zetas targeted Poscual-Jimenez’s family to extort money from
them and not to punish them for having a particular status. We have held that
economic extortion is not a form of persecution based upon a protected group.
See Garcia v. Holder, 756 F.3d 885, 890 (5th Cir. 2014).
To obtain relief under CAT, “an applicant must show that it is more
likely than not that he would be tortured if returned to his home country.”
Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005) (internal quotation
marks and citation omitted). Although past torture can support a CAT claim,
see 8 C.F.R. § 208.16(c)(3), Poscual-Jimenez did not present any evidence of
past harm, let alone torture.

In addition, Poscual-Jimenez presented no

evidence that he would be targeted for torture by instigation or acquiescence
of the Mexican government.
Accordingly, the record does not compel a finding contrary to that of the
BIA regarding whether Poscual-Jimenez is eligible for withholding of removal

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and CAT protection. See Wang, 569 F.3d at 536-37. Poscual-Jimenez’s petition
for review is DENIED.

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