     Case: 18-60352      Document: 00515474458         Page: 1    Date Filed: 07/01/2020




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

                                                                              FILED
                                    No. 18-60352                            July 1, 2020
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

MELIDA ELISSA FLORES-GUARDADO, also known as Melida Elissa Flores
Guardado,

                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A202 005 638


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Melida Elissa Flores-Guardado, a native and citizen of El Salvador, has
petitioned for review of a decision by the Board of Immigration Appeals (BIA).
The BIA dismissed her appeal and affirmed the decision of an immigration
judge (IJ) ordering her removal and denying asylum, withholding of removal,
relief under the Convention Against Torture (CAT), and humanitarian asylum.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60352

      Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Flores-Guardado
contends that her notice to appear, which did not specify the date and time of
the removal hearing, was an invalid charging document that did not vest the
immigration court with jurisdiction. However, in the immigration proceedings,
she did not attack the validity of her notice to appear or challenge the agency’s
jurisdiction. Because she failed to exhaust this argument, we lack jurisdiction
to review it. See Omari v. Holder, 562 F.3d at 314, 320-21 (5th Cir. 2009).
      Flores-Guardado also challenges the BIA’s decision as to her request for
asylum, withholding of removal, and CAT relief. She does not raise any claim
as to the denial of humanitarian asylum and has abandoned any challenge to
that decision. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
      Because the BIA approved of and considered the IJ’s findings, the BIA’s
and IJ’s decisions both are reviewable. See Wang v. Holder, 569 F.3d 531, 536
(5th Cir. 2009). Under the substantial evidence standard, Flores-Guardado
must establish that the evidence compels a determination contrary to the BIA’s
decision. Id. at 537.
      Flores-Guardado asserts that the BIA wrongly concluded that she failed
to propose a cognizable particular social group for purposes of her requests for
asylum and withholding of removal. She contends that she is entitled to relief
based on her proposed group of “Salvadoran women abused as a result of an
unescapable imputed relationship.”
      Substantial evidence supports the decision that Flores-Guardado did not
show that she was a member of a cognizable particular social group. See Wang,
569 F.3d at 536-537.      Seemingly, the group is improperly defined by the
persecutory conduct aimed at its members. See Orellana-Monson v. Holder,
685 F.3d 511, 518-519 (5th Cir. 2012). In any event, the alleged group lacks
social visibility and particularity. See id.



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                                 No. 18-60352

      To the extent that Flores-Guardado argues that we should not apply the
BIA’s test for determining whether an alien has identified a cognizable
particular social group and instead utilize the test employed by the Third and
Seventh Circuits, her claim is unavailing. We have accepted the BIA’s test, see
Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786-87 & n.1 (5th Cir. 2016);
Orellana-Monson, 685 F.3d at 519, 521, and will follow our precedent absent
en banc reconsideration or a superseding contrary decision by the Supreme
Court, see Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). Her assertion
that the BIA’s definition of particular social group is unconstitutionally vague
under Sessions v. Dimaya, 138 S. Ct. 1204 (2018), lacks merit because she fails
to explain how Dimaya is apposite.         Thus, the record does not compel a
conclusion contrary to that of the BIA as to whether she was entitled to asylum
or withholding of removal. See Wang, 569 F.3d at 537.
      Flores-Guardado also contends that the BIA erroneously found that she
was ineligible for relief under CAT. She asserts that she was raped and abused
by a man in her former village and that this conduct, which qualifies as torture,
likely would recur because government authorities in El Salvador generally do
not act to address violence against women.
      She has failed to show that the evidence compels a finding that she more
likely than not will be tortured in El Salvador. See id.; Zhang v. Gonzales, 432
F.3d 339, 344-45 (5th Cir. 2005). She has not shown that the man who targeted
her—who was in jail when she left—would inflict further harm. Further, there
is no evidence that any torture would be inflicted with the acquiescence of the
Salvadoran government. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 354-
55 (5th Cir. 2002).
      Thus, the petition for review is DENIED IN PART and DISMISSED IN
PART for lack of jurisdiction.



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