     Case: 15-60727      Document: 00513910932         Page: 1    Date Filed: 03/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 15-60727                               FILED
                                  Summary Calendar                       March 14, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
OTTO ARTURO MAYEN PARAZA,

                                                 Petitioner

v.

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

                                                 Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A077 116 956


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Otto Arturo Mayen Paraza, a native and citizen of El Salvador, has filed
a petition for review of orders from the Board of Immigration Appeals (BIA)
denying his application for withholding of removal and denying his subsequent
motion to reopen or reconsider. He also seeks the appointment of counsel and
a stay of the proceedings pending adjudication of his pending Form I-918,
Petition for U Nonimmigrant Status.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60727

      We review the BIA’s rulings of law de novo and its findings of fact for
substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The
determination that an alien is not eligible for withholding of removal is a
factual finding reviewed under the substantial evidence test. Efe v. Ashcroft,
293 F.3d 899, 906 (5th Cir. 2002).
      The denial of a motion to reopen is reviewed under a “highly deferential
abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019,
1021 (5th Cir. 2014) (internal quotation marks and citation omitted). The BIA
“abuses its discretion when it issues a decision that is capricious, irrational,
utterly without foundation in the evidence, based on legally erroneous
interpretations of statutes or regulations, or based on unexplained departures
from regulations or established policies.” Id.
      Mayen Paraza asserts that he was eligible for withholding of removal
because he fears persecution on account of his membership in a particular
social group consisting of “former witnesses against a crime in the United
States.” The applicant bears the burden of establishing “a claim based on
membership in a particular social group and will be required to present
evidence that the proposed group exists in the society in question.” Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 244 (BIA 2014).
      Mayen Paraza presented no testimony that witnesses against crimes in
the United States would be perceived as a group in Salvadoran society nor did
he claim that anyone in El Salvador would identify him as belonging to such a
group. See Orellana-Monson v. Holder, 685 F.3d 511, 522 (5th Cir. 2012). As
such, the BIA did not err in rejecting Mayen Paraza’s proposed social group
and denying withholding of removal.
      Additionally, Mayen Paraza argues that remand is warranted because
the BIA failed to consider that he had experienced torture in the past during a



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                                 No. 15-60727

kidnapping that occurred in California 20 years ago, a fact that he claims
supports his eligibility for relief under the Convention Against Torture (CAT).
Because this claim is raised for the first time in his petition for review of his
removal order, Mayen Peraza has failed to administratively exhaust the claim,
and this court lacks jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).
Mayen Paraza also raises the argument that he was mentally incompetent and
could not meaningfully participate in the removal proceedings. This claim is
also unexhausted because it was not raised before the immigration judge (IJ)
or the BIA. See id.
      He also contends that his removal order violates his right to substantive
due process under the state-created danger theory of liability. He claims that
the theory applies in his case and invalidates his removal order because the
Los Angeles Police Department made him testify as a witness for the
prosecution in his kidnapping case. We have “never explicitly adopted the
state-created danger theory.” Doe ex rel. Magee v. Covington Cty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 864 (5th Cir. 2012). As such, Mayen Paraza has failed
to allege a valid constitutional challenge to his removal order.
      Finally, Mayen Paraza challenges the denial of his motion to reopen or
reconsider. In his motion to reopen, Mayen Paraza complained that his former
counsel had failed to raise certain arguments and present certain theories in
support of his request for relief, such as the state-created danger exception
discussed previously. He also complained that counsel had failed to point the
IJ to certain record evidence−namely, a subpoena ordering him to appear as a
witness in the kidnapping case. He further complained that counsel should
have sought protection under the CAT and should have presented the State
Department’s country report on El Salvador to the IJ.




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                                  No. 15-60727

      As the BIA correctly observed, none these claimed deficiencies relate to
the dispositive issue of Mayen Paraza’s failure to identify a viable social group
such that he would be eligible for withholding of removal. Mayen Paraza has
not shown that the BIA abused its discretion in denying his motion to
reconsider based on his claims of ineffective assistance of counsel.
      Mayen Paraza also sought reconsideration on the basis that the IJ had
erred in failing to consider proof of Mayen Paraza’s kidnapping contained in
the record (i.e., the subpoena) and in failing to address his eligibility for CAT
protection in light of his testimony about being beaten while he was held
captive. Mayen Paraza never claimed to have been tortured in the past in El
Salvador. He also had not asserted a likelihood of torture by a public official
or someone acting in an official capacity if returned to his homeland, which is
the relevant consideration under the CAT. See Tamara-Gomez v. Gonzales,
447 F.3d 343, 350 (5th Cir. 2006). Therefore, the BIA did not err in denying
his motion to reconsider on that basis.
      While it is true that the IJ did not account for the subpoena and was
incorrect in stating that there was no documentary evidence in the record to
corroborate Mayen Paraza’s testimony that he had been kidnapped and that
he had testified in court against his captors, the BIA did not affirm that portion
of the IJ’s decision. Instead, the basis of the removal order was Mayen Paraza’s
failure to identify a viable social group. As such, Mayen Paraza cannot rely on
the IJ’s failure to consider the subpoena as a basis for reconsideration.
      In light of the foregoing, the BIA did not err in rejecting Mayen Paraza’s
request for withholding of removal nor did it err in denying his subsequent
motion to reopen or reconsider.      Accordingly, his petitions for review are
DENIED. Because he is not entitled to relief on either of his petitions for
review, Mayen Paraza’s motion for appointment of counsel is also DENIED.



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                                 No. 15-60727

Finally, his motion to stay the proceedings pending the resolution of his U visa
application is DENIED.




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