Edwin Murillo-Bernal v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60158 Affirmed] Judge: EGJ, Judge: PRO, Judge: CH. Mandate pull date is 11/06/2017 [16-60158]

Case: 16-60158

Document: 00514156462

Page: 1

Date Filed: 09/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60158
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 14, 2017
Lyle W. Cayce
Clerk

EDWIN MURILLO-BERNAL,
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. A087 474 162
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *

Edwin Murillo-Bernal is a native and citizen of El Salvador. He seeks
review of a decision by the Board of Immigration Appeals (BIA) dismissing his
appeal from the decision by an immigration judge (IJ) denying his applications
for asylum, withholding of removal, and relief under the Convention Against
Torture.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-60158
Murillo-Bernal was a taxi driver who reported that gangsters extorted
money from him until he was unable to pay and then threatened to kill him if
he did not pay. He testified that the gangsters forced him to watch as they
burned another taxi with the driver inside. The IJ determined that MurilloBernal was not credible, mainly because he did not mention the man-burning
incident in his written application for asylum. Credibility aside, the IJ also
concluded that that Murillo-Bernal failed to establish a right to withholding of
removal or relief under the Convention Against Torture. The IJ also concluded
that “[g]ang activities such as extortion and robbery constitute general
lawlessness, and aliens fleeing general conditions of violence and upheavals in
their countries would not qualify for asylum.”

The BIA affirmed the IJ’s

credibility determination.
In the brief supporting his petition for review, Murillo-Bernal addresses
only the IJ’s credibility determination and its effect on his asylum application.
Even assuming he prevailed on the credibility issue, he fails to address how he
was persecuted or feared persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. 1

Orellana-

Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012).
As in his BIA appeal, he does not challenge the IJ’s findings that he failed
to establish a right to withholding of removal or relief under the Convention
Against Torture. These issues are waived. See Soadjede v. Ashcroft, 324 F.3d
830, 833 (5th Cir. 2003). In any event, we would lack jurisdiction to consider
those issues because they were not exhausted before the BIA. See Roy v.
Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). Murillo-Bernal also argues that he
His appellate brief states only that his persecution claim “involves his fear that he
will be killed by the gangs that operate openly . . . based on the grounds that Murillo-Bernal
was unable and unwilling to continue paying exorbitant ‘protection’ . . . fees to the gangs as
demanded to survive in his taxi business.” This does not state a claim falling within the
protected grounds.
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was denied a fair hearing due to the absence of transcripts that might have
supported an exception to the untimely filing of his asylum application. But
that issue was mooted when the BIA determined that the asylum application
failed even if timely. Thus, only the credibility issue is before us.
The BIA’s decision to uphold the IJ’s adverse credibility determination
is reviewed under the substantial evidence standard. See Wang v. Holder, 569
F.3d 531, 536 (5th Cir. 2009).

Under that standard, the IJ’s credibility

determinations will be reversed only if the record compels a contrary
conclusion. See id. at 538-39.
Murillo-Bernal argues that he presented a plausible reason for not
mentioning the man-burning incident in his asylum application and that the
IJ ignored his obvious emotional distress in testifying about the incident. As
the BIA observed, the IJ took note of Murillo-Bernal’s emotional state. The
BIA declined to second-guess the IJ and concluded that the IJ was not required
to accept Murillo-Bernal’s explanation for intentionally declining to mention
an incident that “was significant and central” to his claim. In essence, MurilloBernal asks this court to second-guess the IJ’s credibility determination. That
is contrary to the highly deferential standard of review. See Wang, 569 F.3d
at 538.
The petition for review is DENIED.

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