Juan Garcia Salas v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60823 Affirmed] Judge: WED, Judge: EBC, Judge: GJC. Mandate issue date is 01/08/2018 [16-60823]

Case: 16-60823

Document: 00514236754

Page: 1

Date Filed: 11/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60823
Summary Calendar

FILED
November 14, 2017
Lyle W. Cayce
Clerk

JUAN GARCIA SALAS,
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. A208 142 287
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *

Juan Garcia Salas, a native and citizen of Mexico, petitions this court for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal of the Immigration Judge’s (IJ) decision denying his requests for
change of venue, asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). Regarding the change of venue, the IJ
determined that there was no good cause to grant the motion. The BIA found

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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that there was no prejudice to Garcia Salas resulting from the denial of that
motion. In rejecting his claims on the merits, the BIA and IJ both found (1)
that Garcia Salas did not establish that he was persecuted on account of his
membership in a social group and (2) that there was no evidence he would be
tortured with the acquiescence of a Mexican government official if returned to
Mexico.
Garcia Salas first asserts that the BIA did not rule on his motion to
remand and change venue. While the BIA did not formally deny the motion to
remand, the order dismissing the appeal clearly indicates that the BIA found
no prejudicial error in the IJ’s denial of the request to transfer venue. Thus,
Garcia Salas received full and fair consideration of his request. See Roy v.
Ashcroft, 389 F.3d 132, 139 (5th Cir. 2004).
Regarding the denial of the motion to change venue, Garcia Salas argues
that his due process rights were denied because he was not allowed the
opportunity to have his claim for derivative relief heard. Garcia Salas was not
denied notice, hearing, or an appeal. See Zhang v. Gonzales, 432 F.3d 339, 346
(5th Cir. 2005). As noted by the BIA, Garcia Salas’s claim was based on the
same facts giving rise to the claim raised by his wife. Moreover, even if there
was a due process violation, Garcia Salas cannot show that the due process
violation resulted in substantial prejudice. See Anwar v. I.N.S., 116 F.3d 140,
144-45 (5th Cir. 1997).
Garcia Salas argues that the BIA and IJ erred in finding that he failed
to show that he was persecuted on account of membership in a social group.
He also asserts that the BIA and IJ erred in determining that he failed to show
that it was more likely than not that he would be subjected to torture if
returned to Mexico.

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We “review only the BIA’s decision, . . . unless the IJ’s decision has some
impact on” that decision. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
Factual findings are reviewed under the substantial evidence standard, and
legal questions are reviewed de novo. Rui Yang v. Holder, 664 F.3d 580, 584
(5th Cir. 2011). Under the substantial evidence standard, the petitioner must
show that “the evidence is so compelling that no reasonable factfinder could
reach” a conclusion contrary to the petitioner’s position. Orellana-Monson v.
Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and
citation omitted).
The threat Garcia Salas received does not show that he was persecuted
on account of his membership in a particular social group; rather any
persecution faced by Garcia Salas and his family was based upon a personal
vendetta. See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004). The
BIA’s and the IJ’s decisions that Garcia Salas was not entitled to asylum are
supported by substantial evidence. See Orellana-Monson, 685 F.3d at 518.
Because Garcia Salas fails to show that he is entitled to relief in the form of
asylum, he cannot establish entitlement to withholding of removal, which
requires a higher burden of proof. See Dayo v. Holder, 687 F.3d 653, 658-59
(5th Cir. 2012). Further, the record does not show that it was more likely than
not that Garcia Salas would be tortured by or with the acquiescence of a
Mexican government official if returned to Mexico; the BIA and IJ did not err
in determining that he is not entitled to protection under the CAT. See Hakim
v. Holder, 628 F.3d 151, 155 (5th Cir. 2010).
Garcia Salas’s petition for review is DENIED.

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