Ernesto Esparza-Sanchez v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60176 Affirmed in Part and Dismissed for Lack of Jurisdiction in Part] Judge: PEH , Judge: ECP , Judge: CH Mandate pull date is 07/31/2017 [16-60176]

Case: 16-60176

Document: 00514025588

Page: 1

Date Filed: 06/08/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60176
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
June 8, 2017
Lyle W. Cayce
Clerk

ERNESTO ESPARZA-SANCHEZ,
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 726 677
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *

Proceeding pro se, Ernesto Esparza-Sanchez petitions for review of an
order of the Board of Immigration Appeals (BIA) denying his motion to reopen
removal proceedings. For the reasons set forth below, we dismiss the petition
in part and deny it in part.
As a general matter, we lack jurisdiction to review an issue not raised
before the BIA. See Townsend v. U.S. Dep’t of Justice I.N.S., 799 F.2d 179, 181

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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(5th Cir. 1986); 8 U.S.C. § 1252(d)(1). Esparza-Sanchez’s contentions that the
BIA (1) applied the wrong legal standard to his motion to reopen, (2) failed to
consider all of the evidence he submitted, and (3) failed to consider whether he
had established a well-founded fear of future persecution based on his political
opinion, are issues “stemming from the BIA’s act of decisionmaking” and thus
could not have been raised prior to the BIA’s issuance of its decision. See
Omari v. Holder, 562 F.3d 314, 319-21 (5th Cir. 2009). Esparza-Sanchez was
required to raise these issues in a motion for reconsideration in order to satisfy
the exhaustion requirement. See id. at 320. Because he failed to do so, these
issues are unexhausted, and accordingly the instant petition for review is
dismissed in part for lack of jurisdiction. See Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004); Townsend, 799 F.2d at 181.
Esparza-Sanchez argues that his motion to reopen established a prima
facie case for asylum and protection under the Convention Against Torture
(CAT). We apply “a highly deferential abuse of discretion standard” when
reviewing the BIA’s denial of such a motion. Lara v. Trominski, 216 F.3d 487,
496 (5th Cir. 2000).
As the BIA did in the instant matter, a motion to reopen may be denied
for failure to establish a prima facie claim for relief. INS v. Doherty, 502 U.S.
314, 322 (1992). To make a prima facie showing of eligibility for asylum, a
movant must demonstrate a reasonable likelihood that he has met the
requirements for relief. Flores v. INS, 786 F.2d 1242, 1247 (5th Cir. 1986). A
claim for asylum “requires a showing of past persecution or a well-founded fear
of persecution” on account of race, religion, nationality, membership in a
particular social group, or political opinion. Roy, 389 F.3d at 138. “To obtain
protection under the CAT, an alien must demonstrate that, if removed to a
country, it is more likely than not he would be tortured by, or with the

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acquiescence of, government officials acting under the color of law.” Hakim
v. Holder, 628 F.3d 151, 155 (5th Cir. 2010).
Esparza-Sanchez contends that his new evidence, which includes a letter
purportedly from the leader of a labor union in Mexico, shows that the labor
union wants to kill him. The BIA determined, however, that the new evidence
was unpersuasive given the lack of any allegation that Esparza-Sanchez’s inlaws had been harmed when union members delivered the letter from their
leader. The BIA was entitled to consider the safety of Esparza-Sanchez’s
family members in determining whether his fear of future persecution is well
founded, as required to make a claim for asylum. See Eduard v. Ashcroft, 379
F.3d 182, 193 (5th Cir. 2004). In view of the foregoing, Esparza-Sanchez has
not shown that the BIA abused its discretion in determining that he had not
made a prima facie showing that he met the requirements for asylum. See
Flores, 786 F.2d at 1247. Because Esparza-Sanchez failed to make a prima
facie showing as to his claim for asylum, he necessarily failed to make such a
showing on his claim for withholding of removal. See Adebisi v. INS, 952 F.2d
910, 914 (5th Cir. 2010).
As to his claim for protection under the CAT, Esparza-Sanchez disputes
the BIA’s determination that he has not shown that Mexican authorities are
unwilling or unable to protect him from union members.

He asserts in

conclusory fashion, and without reference to the administrative record, that
the union is acting in an official capacity and that the union would torture him
if he returns to Mexico. Esparza-Sanchez’s conclusory, unsupported assertions
are insufficient to make a prima facie showing of an entitlement to protection
under the CAT, and he fails to show that the BIA abused its “broad discretion”
in denying his motion to reopen. See Lara, 216 F.3d at 496.
PETITION DISMISSED IN PART AND DENIED IN PART.

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