     Case: 11-60338     Document: 00512001994         Page: 1     Date Filed: 09/27/2012




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

                                                                            FILED
                                                                        September 27, 2012

                                       No. 11-60338                        Lyle W. Cayce
                                                                                Clerk

ANGEL MAURICIO ALCANTARA,

                                                  Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent



                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                BIA No. A078 996 185


Before DeMOSS, STEWART, and GRAVES, Circuit Judges.
PER CURIAM:*
        Petitioner Angel Mauricio Alcantara (“Alcantara”), a native and citizen of
Mexico, who conceded removability, petitions for review of a decision by the
Board of Immigration Appeals (“BIA”) dismissing his appeal from the
Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”).




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                    I. Factual and Procedural Background
      We briefly review the facts that are relevant to Alcantara’s claims for
relief. At the hearing before the IJ, Alcantara testified that in Mexico in October
of 1993, he saw Miguel Ortiz (“Ortiz”) unload packages from an airplane that
had landed on a highway near his place of business and subsequently reported
the suspicious activity to the local police. Alcantara claimed that Ortiz and his
father, Angel Ortiz Lugo (“Lugo”), who was at that time an attorney for the state
of Morales, were involved in drug trafficking. The next day, Ortiz and three
accomplices came to Alcantara’s place of business and threatened to kill
Alcantara for informing the police about his illegal activity. A gunfight ensued
and Ortiz was killed. Alcantara was later arrested for murder and held in prison
for eighteen months until he was acquitted of the crime. While in prison,
Alcantara was beaten and burned by two prison guards who acted under orders
from Lugo. Alcantara testified that after being released from prison, Lugo and
his associates followed him and threatened him and his family until he entered
the United States in 1995. Alcantara argues that he would continue to be
targeted by corrupt organized crime figures and that if returned to Mexico he
would be killed or seriously injured.
      The IJ found that Alcantara was credible but nevertheless denied
Alcantara’s application for asylum, withholding of removal, and CAT relief, and
ordered that Alcantara be removed to Mexico. The BIA adopted and affirmed
the IJ’s decision, and dismissed Alcantara’s appeal.
                                 II. Discussion
      Given that the BIA approved of, and relied upon, the IJ’s decision, we
review the decisions of both the BIA and the IJ. Zhu v. Gonzales, 493 F.3d 588,
593 (5th Cir. 2007). This court reviews the factual findings of the BIA and IJ for
substantial evidence, and reviews questions of law de novo. Id. at 594; see Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). This court may reverse a decision

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on a factual finding only when the evidence “compels” it. Zhu, 493 F.3d at 594.
      Alcantara first challenges the BIA’s decision that he is ineligible for
asylum because he did not file his application within one year of his entry to the
United States. See 8 U.S.C. § 1158(a)(2)(B). He raises a two-pronged challenge
to the determination that his asylum application was not timely. Pursuant to
the REAL ID Act of 2005, our court has jurisdiction to review a determination
of timeliness that turns on a constitutional claim or question of law, but lacks
jurisdiction to review such a determination if based on findings of fact.
Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007).
      Regarding this timeliness issue, Alcantara first contends that the BIA
erred in holding that 8 C.F.R. § 1208.3 provides that submission of Form I-589
is the sole means by which an asylum application may be filed, and that the
regulations do not provide for the constructive filing of an application. As this
issue involves the BIA’s construction of a federal regulation, it is a question of
law over which we have jurisdiction. Nevertheless, because Alcantara’s briefing
on this point amounts to no more than one sentence, with no citations to legal
authority challenging the BIA’s legal conclusion, he has waived this issue. Fed.
R. App. P. 28(a)(9).
      Alcantara’s second challenge on the issue of timeliness is that the BIA
erred in finding that he failed to establish he was prevented from timely filing
the Form I-589 by immigration officials because they did not provide him with
asylum forms when he orally requested asylum. According to the BIA, Alcantara
did not pursue an asylum application earlier due to advice he received from pro
bono counsel. Alcantara argues that he would have timely filed his application
had immigration officials who questioned him and his wife at the airport upon
her entry to the United States in 1998 provided him with the asylum forms when
he and his wife expressed a fear of persecution or harm upon return to Mexico.
However, the substance of Alcantara’s argument is that the BIA factually erred

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in assessing the testimony and finding that Alcantara did not file due to the
advice of counsel rather than due to the actions of the immigration officials.
This is a challenge to a factual finding and we lack jurisdiction to consider the
issue. See supra. Therefore, Alcantara’s challenge to the BIA’s determination
that his asylum application was not timely is dismissed.
      Alcantara next contends that the BIA erred in denying his application for
withholding of removal. In order to obtain withholding of removal, an applicant
“must show that ‘it is more likely than not’ that his life or freedom would be
threatened by persecution” based on one of five enumerated grounds: race,
religion, nationality, membership in a particular social group, or political
opinion. Efe, 293 F.3d at 906 (quoting 8 C.F.R. § 208.16(b)(1)). The BIA’s
determination that Alcantara did not suffer past persecution and does not
harbor a well-founded fear of future persecution based on an enumerated ground
is supported by substantial evidence. The BIA found that the physical violence
and threats against Alcantara were motivated by general criminality and a
personal vendetta and not his political opinion, and further that his objection to
corruption or criminality did not place him in a particular social group. On
appeal, he has not stated “specific, detailed facts” that show that he would “be
singled out for persecution” based on a political opinion or membership in a
defined social group. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994) (internal
quotation marks and citation omitted); see INS v. Elias-Zacarias, 502 U.S. 478,
481-83 (1992); Matter of S-E-G-, 24 I. & N. Dec. 579, 582-84 (BIA 2008).
      Finally, Alcantara contends that the BIA erred in denying his application
for relief under the CAT. To obtain CAT relief, Alcantara must show that it is
more likely than not that he will be tortured upon return to Mexico. 8 C.F.R. §
208.16(c)(2); see Tamara-Gomez v. Gonzales, 447 F.3d 343, 350 (5th Cir. 2006).
For CAT purposes, “Torture is defined as any act by which severe pain or
suffering . . . is intentionally inflicted on a person . . . when such pain or

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suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 208.18(a)(1); Tamara-Gomez, 447 F.3d at 350. Thus, CAT relief
requires a two part analysis: “first, is it more likely than not that the alien will
be tortured upon return to his homeland; and second, is there sufficient state
action involved in that torture.” Tamara-Gomez, 447 F.3d at 350-51 (footnote
omitted).
      Alcantara heavily emphasizes the question of state action in this case,
arguing that his past torture by two state prison guards, inflicted on him while
he was in pretrial detention in state prison, necessarily includes sufficient state
action for CAT relief and requires no further acquiescence from higher level
government officials. The IJ and BIA found that the two prison guards were
acting based on personal vendettas, on the instruction of Lugo, and not in their
official capacity as required to meet the CAT definition of torture. However, to
resolve this appeal, it is not necessary for this court to determine the meaning
of the state action required by 8 C.F.R. § 208.18(a).
      The BIA ultimately found that Alcantara had not established the requisite
likelihood of future torture. On appeal, Alcantara has not produced evidence
that compels the contrary conclusion. CAT relief is prospective. In assessing the
likelihood of torture if returned, past torture is only one element to be
considered. 8 C.F.R. § 208.16(c)(3); Tamara-Gomez, 447 F.3d at 350 n.11. Even
assuming, without deciding, that the past torture by the prison guards included
sufficient state action or government acquiescence to meet the definition of
torture under the CAT, there is substantial evidence in the record to support the
BIA’s determination that Alcantara has not shown that it is more likely than not
that he will be tortured upon return to Mexico. The past torture was inflicted
by specific guards in prison while Alcantara was accused of a crime he was later
acquitted of, and at the instigation of a drug trafficker whose current position

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and whereabouts are not known. Alcantara has produced nothing to show that
it is more likely than not that any state officials would torture him or acquiesce
in his torture upon his return to Mexico. See Efe, 293 F.3d at 907-08; Chen v.
Gonzales, 470 F.3d 1131, 1143 (5th Cir. 2006).
                                III. Conclusion
      For the foregoing reasons, Alcantara’s appeal is DISMISSED in part and
DENIED in part.




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