Julio Nicolas-Brandi v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60584 Affirmed in Part and Dismissed in Part] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 06/05/2017 [15-60584]

Case: 15-60584

Document: 00513950254

Page: 1

Date Filed: 04/12/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60584
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
April 12, 2017
Lyle W. Cayce
Clerk

JULIO NICOLAS-BRANDI,
Petitioner
v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 164 322
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Julio Nicolas-Brandi, a native and citizen of Mexico, petitions for review
of the order of the Board of Immigration Appeals (BIA) dismissing his appeal
from the Immigration Judge’s (IJ) denial of his application requesting asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). Nicolas-Brandi argues that the BIA erroneously denied his application
for asylum even though he established that he was persecuted because of, and

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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had a well-founded fear of future persecution based upon, his membership in
a particular social group, i.e., a Gypsy family.
Because the BIA agreed with the IJ’s determinations regarding NicolasBrandi’s eligibility for relief, both the BIA’s and IJ’s decisions are reviewable.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Under the substantial
evidence standard, Nicolas-Brandi must demonstrate that the evidence is so
compelling that no reasonable factfinder could reach a conclusion contrary to
that of the BIA. Id. at 537.
Substantial evidence supports the BIA’s conclusion that Nicolas-Brandi
failed to establish that he was persecuted, or has a well-founded fear of future
harm, because of his membership in a particular social group. See Wang, 569
F.3d at 537. The record especially does not compel the conclusion that a central
reason that Nicolas-Brandi and his family were or would be targeted was their
Gypsy background or family identity. See Shaikh v. Holder, 588 F.3d 861, 864
(5th Cir. 2009); Wang, 569 F.3d at 537. Rather, Nicolas-Brandi and his family
were targeted because the Zetas sought to enrich themselves, and the family
was perceived to have the wealth and the willingness to pay ransoms to secure
the safety of their family members; Nicolas-Brandi’s family membership and
Roma background – which had characteristics that tangentially advanced the
Zetas’ aim of financial gain through extortion – were incidental to the principal
motivation of the Zetas. We have reasoned that economic extortion and actions
based on a criminal motive or a desire for money do not constitute persecution
on account of a protected ground. See Garcia v. Holder, 756 F.3d 885, 890 (5th
Cir. 2004); Shaikh, 588 F.3d at 864. Under the circumstances, we need not
consider whether Nicolas-Brandi or his family were persecuted by the Mexican
government or an entity that the government is unable or unwilling to control
or whether the Department of Homeland Security rebutted any presumption

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of past persecution by showing that Nicolas-Brandi reasonably could relocate
within Mexico without being persecuted. See Tesfamichael v. Gonzales, 469
F.3d 109, 113 (5th Cir. 2006); Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir.
2004).
Nicolas-Brandi also argues that the BIA erred in denying his claim for
relief under CAT. However, he did not raise this argument in his appeal to the
BIA and, therefore, he failed to exhaust his administrative remedies as to the
claim. See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). Accordingly,
we lack jurisdiction to consider the issue. See 8 U.S.C. § 1252(d)(1); Omari v.
Holder, 562 F.3d 314, 319 (5th Cir. 2009). Nicolas-Brandi has not briefed any
argument as to the denial of withholding of removal and thereby has waived
any related claim. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir.
2008); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
PETITION DENIED IN PART AND DISMISSED IN PART.

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