     Case: 15-60481      Document: 00513554152         Page: 1    Date Filed: 06/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-60481                                  FILED
                                  Summary Calendar                            June 20, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
NOE ELEAZAR ELIZONDO,

                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A098 352 649


Before JOLLY, DENNIS and PRADO, Circuit Judges.
PER CURIAM: *
       Noe Eleazar Elizondo, 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
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). The BIA and IJ found that Elizondo was a member of a
particular social group identified as “gay Mexican men with HIV.” However,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-60481    Document: 00513554152     Page: 2   Date Filed: 06/20/2016


                                 No. 15-60481

both the BIA and IJ found that Elizondo was not persecuted on account of his
membership in that group and that there was no evidence he would be tortured
with the acquiescence of the Mexican government if returned to Mexico.
      Elizondo argues that the BIA and IJ erred in finding that he failed to
show that he was persecuted on account of membership in a protected class or
that the Mexican government was unable or unwilling to control the violence.
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.
      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).
      Though Elizondo testified that he suffered insults from persons based on
his homosexuality, those comments do not qualify as persecution. See Eduard
v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004). Elizondo’s testimony regarding
the robberies he suffered and the assault he experienced also do not show that
he was persecuted on account of his membership in a particular social group.
See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004). Further, Elizondo
did not report any incidents to the authorities, and there is no evidence in the
record that the Mexican government is unable or unwilling to control the
violence.



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                                No. 15-60481

      The BIA’s and the IJ’s decisions that Elizondo was not entitled to asylum
because he failed to establish that he suffered past persecution by actors that
the Mexican government was unwilling or unable to control and based on
membership in a particular social group are supported by substantial evidence.
See Orellana-Monson, 685 F.3d at 518. Because Elizondo 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). The record evidence does not
show that it was more likely than not Elizondo would be tortured if returned
to Mexico. See Hakim v. Holder, 628 F.3d 151, 155 (5th Cir. 2010).
      Accordingly, Elizondo’s petition for review is DENIED.




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