     Case: 16-60689       Document: 00514421691         Page: 1     Date Filed: 04/09/2018




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

                                                                                      FILED
                                      No. 16-60689                                 April 9, 2018
                                    c/w No. 17-60363                             Lyle W. Cayce
                                   Summary Calendar                                   Clerk


IMELDA MARISCAL-ROMO; JESUS ARTURO JIMENEZ-MANJARREZ,

                                                  Petitioners

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                  Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A205 831 093
                               BIA No. A205 667 680


Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
       In these consolidated cases, married couple Imelda Mariscal-Romo and
Jesus Arturo Jimenez-Manjarrez, natives and citizens of Mexico, petition for
review of: the Board of Immigration Appeals’ (BIA) dismissal of their appeal
from the immigration judge’s (IJ) denial of their applications for asylum,
withholding of removal, and relief under the Convention Against Torture


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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(CAT); and the BIA’s denial of their motion to reopen the proceedings pursuant
to 8 C.F.R. § 1003.2(c)(1).
      In their applications for asylum and withholding of removal, Mariscal
and Jimenez claimed they suffered past persecution and had a well-founded
fear of persecution due to their membership in the Mariscal family. In that
regard, they sought relief based on their fear of being persecuted and tortured
in their home country of Mexico. Before the IJ, Mariscal testified that she and
her family fled Mexico in 2012, after unknown assailants kidnapped and
murdered her brother, assaulted her mother, and made threatening telephone
calls to her family. She also testified that her father, grandfather, and uncle
were murdered by a rival family more than two decades earlier.
      The BIA dismissed Mariscal and Jimenez’ appeal from an adverse IJ
decision, ruling, inter alia:   they did not establish, for their asylum and
withholding-of-removal claims, a well-founded fear of persecution because of
their “membership in a particular social group”, 8 U.S.C. § 1158(b)(1)(B)(i);
and, for their CAT claims, that the Mexican government was complicit in their
torture, Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006).
Mariscal and Jimenez assert, inter alia: the BIA improperly focused on a single
incident—Mariscal’s brother’s murder—instead of viewing all of the events
supporting their claims; and the record evidence compelled a finding that
Mexican authorities deliberately failed to protect their family.
      “When considering a petition for review, this court has the authority to
review only the BIA’s decision, not the IJ’s . . ., unless the IJ’s . . . has some
impact on the BIA’s . . . .” Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
Factual findings are reviewed under the substantial evidence standard; legal
questions, de novo, giving deference to the BIA’s interpretation of any




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ambiguous immigration statutes. Orellana-Monson v. Holder, 685 F.3d 511,
517–18 (5th Cir. 2012).
      Under the substantial evidence standard, we may not reverse an
immigration court’s factual findings unless “the evidence was so compelling
that no reasonable factfinder could conclude against it”. Wang, 569 F.3d at
537; 8 U.S.C. § 1252(b)(4)(B).    Mariscal and Jimenez have the burden to
demonstrate the evidence compels a contrary conclusion. Zhao v. Gonzales,
404 F.3d 295, 306 (5th Cir. 2005).
      To prevail in their application for asylum, Mariscal and Jimenez “must
establish that race, religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central reason for [their]
persecuti[on]”. 8 U.S.C. § 1158(b)(1)(B)(i). The BIA assumed the Mariscal
family constituted a “particular social group” for purposes of immigration
relief, but determined Mariscal and Jimenez failed to establish “they were
persecuted, or may be persecuted, on account of their family membership”. To
prove the required nexus between the alleged persecution and one of the five
statutory grounds for asylum, they were required to at least present some
direct or circumstantial evidence of their persecutors’ motives. I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 483 (1992); Tamara-Gomez, 447 F.3d at 348–49.
Although Mariscal testified her brother’s kidnapping and murder in 2012 was
related to the murders of her father, grandfather, and uncle, she did not
provide an adequate basis for linking the 2012 incident with the three murders
two decades earlier. Along that line, she concedes she does not know the “exact
motives of her persecutors”.
      Still more reasons support the BIA’s decision, precluding reversal under
the substantial-evidence standard: this court has held “economic extortion”,
such as occurred when Mariscal’s brother’s kidnappers demanded ransom from


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Mariscal and Jimenez, is not “a form of persecution under immigration law”.
Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012). Further, “[a]n
applicant [for asylum] does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of the
applicant’s country of nationality”. 8 C.F.R. § 1208.13(b)(2)(ii). Substantial
evidence supports the BIA’s determination they did not meet their burden of
showing they could not safely relocate within Mexico. Id.
      Concomitantly, because Mariscal and Jimenez did not overcome their
burden as to their application for asylum based on a well-founded fear of
persecution, they also could not meet the higher standard for withholding of
removal. 8 U.S.C. § 1231(b)(3)(A) (“Attorney General may not remove an alien
. . . [if] the alien’s life or freedom would be threatened . . . because of the alien’s
. . . membership in a particular social group” (emphasis added)); Eduard v.
Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004) (“Withholding of removal
requires a higher standard of proof than asylum.”).
      As for the Mariscal and Jimenez’ CAT application, such relief requires
proof of “the higher bar of torture”, Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
2002); does not require a nexus between the torture and one of the five
protected grounds (such as membership in a protected group), id.; but does
require the torture be “inflicted by or at the instigation of or with the consent
or acquiescence of a public official”. 8 C.F.R. § 208.18(a)(1).
      The BIA agreed with the IJ’s finding Mariscal and Jimenez did not
present evidence to support their claim the Mexican government had been
willfully blind to their safety. In contrast, Mariscal and Jimenez concede
Mexican authorities conducted an investigation into Mariscal’s brother’s
kidnapping and murder, but they contend the authorities did not act diligently
in that investigation and lacked concern for their family’s safety. Mariscal and


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Jimenez’ contentions are insufficient to demonstrate the BIA’s decision in this
regard was not supported by substantial evidence. Wang, 569 F.3d at 537.
      Turning to their petition for review from the denial of their motion to
reopen, Mariscal and Jimenez moved to reopen the proceedings on the grounds
that, after the BIA’s dismissal of their appeal, two of Mariscal’s cousins were
killed by an armed group of assailants in Mexico. In support of their motion,
they submitted: the two cousins’ death certificates; a news article referencing
their deaths; older death certificates for Mariscal’s brother, father, and seven
other cousins; and Mariscal’s affidavit stating her belief that her two cousins’
recent murders were related to those of her other family members.
      To justify reopening of removal proceedings based on newly-discovered
evidence, the new facts must be “material” and “could not have been discovered
or presented at the former hearing”. 8 C.F.R. § 1003.2(c)(1). Understandably,
the BIA’s denial of a motion to reopen is reviewed under a “highly deferential
abuse-of-discretion standard”. Gonzalez-Cantu v. Sessions, 866 F.3d 302, 304
(5th Cir. 2017), cert. denied, 138 S. Ct. 677 (2018). We will “affirm the BIA’s
decision as long as it is not capricious, without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach”. Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). In short, motions to reopen are disfavored, and movants must
satisfy a heavy burden. Gonzalez-Cantu, 866 F.3d at 305.
      Mariscal   and    Jimenez    assert   the   BIA   abused     its   discretion
by: disregarding the new death certificates by grouping them with the older
death certificates, in ruling the older death certificates “could . . . have been
discovered or presented at the former hearing”, 8 C.F.R. § 1003.2(c)(1); and
failing to recognize the new evidence demonstrated a pattern of persecution
suffered by the Mariscal family. The BIA properly differentiated between the


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newly-discovered evidence regarding the two cousins’ recent murders and the
older death certificates, which did not qualify as new evidence that would
justify reopening proceedings under 8 C.F.R. § 1003.2(c)(1). As found by the
BIA under the proper materiality analysis, the new death certificates, the news
article, and Mariscal’s affidavit did not provide a sufficient basis for linking
Mariscal’s cousins’ deaths to those of Mariscal’s other family members. The
BIA did not abuse its discretion by denying the motion to reopen. Gonzalez-
Cantu, 866 F.3d at 304–05.
      DENIED.




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