Case: 19-60122     Document: 00515521666         Page: 1     Date Filed: 08/10/2020




            United States Court of Appeals
                 for the Fifth Circuit                           United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  August 10, 2020
                                No. 19-60122
                              Summary Calendar                     Lyle W. Cayce
                                                                        Clerk

 Jesus Eduardo Soto-Gomez,

                                                                     Petitioner,

                                     versus

 William P. Barr, U.S. Attorney General,

                                                                   Respondent.


                    Petition for Review of an Order of the
                        Board of Immigration Appeals
                            BIA No. A208 683 419


 Before Haynes, Willett, and Ho, Circuit Judges.
 Per Curiam:*
        Jesus Eduardo Soto-Gomez petitions for review of the decision of the
 Board of Immigration Appeals (BIA) upholding the decision of the
 immigration judge (IJ) who denied his application for asylum, withholding of
 removal, and relief under the Convention Against Torture (CAT). We


        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                  No. 19-60122


 generally review only the decision of the BIA and consider the underlying IJ
 decision only if it influenced the BIA’s determination. See Masih v. Mukasey,
 536 F.3d 370, 373 (5th Cir. 2008). We review the factual findings of an
 immigration court for substantial evidence and consider legal questions
 under the de novo standard. Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
 2009); Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The BIA’s factual
 findings are conclusive unless the record compels a contrary finding. Sharma
 v. Holder, 729 F.3d 407, 411 (5th Cir. 2013).
        First, Soto-Gomez contends that the IJ deprived him of due process
 by denying his request to continue the merits hearing so that he could hire a
 new attorney and obtain documents to support his asylum application. The
 record shows, however, that Soto-Gomez had 11 months between his prior
 appearance before the IJ and the merits hearing and that his former attorney
 had withdrawn from the case because Soto-Gomez failed to provide the
 lawyer with requested documentation. The BIA did not abuse its discretion
 in concluding Soto-Gomez did not show good cause for the requested
 continuance. Masih, 536 F.3d at 373 (5th Cir. 2008). Moreover, Soto-Gomez
 has not established that the denial of a continuance caused “actual
 prejudice” or “materially affected the outcome of his case.” In re Sibrun, 18
 I. & N. Dec. 354, 356–57 (BIA 1983).
        In addition, Soto-Gomez maintains that the BIA erred in concluding
 that he was not entitled to asylum or withholding of removal. Asylum may be
 granted to “an alien who is unable or unwilling to return to his home country
 because of persecution or a well-founded fear of persecution on account of
 race, religion, nationality, membership in a particular social group, or
 political opinion.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)
 (internal quotation marks and citation omitted). Because the BIA determined
 that Soto-Gomez had proved past persecution on account of an imputed
 political opinion, it recognized a rebuttable presumption that his life or



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                                   No. 19-60122


 freedom would be threatened in the future. See 8 C.F.R. § 208.13(b)(1). Soto-
 Gomez contends that the BIA erred in concluding that the Department of
 Homeland Security (DHS) rebutted that presumption by showing that he
 could relocate within Honduras and that it would be reasonable for him to do
 so. See § 208.13(b)(1)(i). The BIA explicitly recognized that DHS had the
 burden to prove the viability of internal relocation. Although DHS did not
 present its own evidence regarding the issue, it could rely on Soto-Gomez’s
 testimony. See, e.g., Singh v. Barr, 920 F.3d 255, 260 (5th Cir. 2019) (evidence
 obtained through cross-examination of the alien). Soto-Gomez’s testimony
 reflected that he had extended family in other cities in Honduras that he
 considered safer than his home city of La Ceiba. Although the BIA may not
 have explicitly considered each of the possible factors listed in
 § 208.13(b)(3), not all factors are necessarily relevant depending on the
 circumstances of the case. Soto-Gomez has not shown that the BIA erred in
 concluding that the presumption of future persecution was properly rebutted
 by DHS. See Sharma, 729 F.3d at 411; § 208.13(b)(1)(i). Because he did not
 meet the lower standard to qualify for asylum, he necessarily did not establish
 a “clear probability of persecution” necessary to qualify for withholding of
 removal. See Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004); Eduard
 v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004).
        In his final ground for relief, Soto-Gomez argues that the BIA erred in
 adopting the IJ’s conclusion that he was not entitled to relief under the CAT.
 The CAT provides that “[n]o State Party shall expel, return . . . or extradite
 a person to another State where there are substantial grounds for believing
 that he would be in danger of being subjected to torture.” Efe v. Ashcroft, 293
 F.3d 899, 907 (5th Cir. 2002). Torture is the intentional infliction of severe
 mental or physical pain for the purpose of obtaining information,
 intimidation, punishment, or discrimination, “when such pain or suffering is
 inflicted by or at the instigation of or with the consent of or acquiescence of




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                                No. 19-60122


 a public official or other person acting in an official capacity.” 8 C.F.R.
 § 208.18(a)(1). The record does not compel a finding that any harm suffered
 by Soto-Gomez was caused by or acquiesced in by government officials. See
 Bah v. Ashcroft, 341 F.3d 348, 351-52 (5th Cir. 2003); § 208.18(a)(7).
 Accordingly, his petition for review is DENIED.




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