FLORES v. GARLAND (2021)

United States Court of Appeals, Fifth Circuit.2021-04-12No. No. 19-60747

Summary · law.co

Holding. The petition for review is denied, affirming the Board of Immigration Appeals' dismissal of the appeal and its denial of the remand request.

Juan Ricardo Flores, a Mexican national, sought review of the Board of Immigration Appeals' decision denying his application for withholding of removal and protection under the Convention Against Torture. Flores argued that his pro se status prevented him from properly presenting his case, particularly regarding what constitutes a cognizable particular social group. The court found that substantial evidence supported the BIA's determination that Flores failed to establish he would likely face persecution based on membership in a particular social group or that government officials participated in or tolerated the harm he feared.

The court rejected Flores's request for remand to allow him to propose additional social groups with the benefit of counsel. The opinion noted that Flores's own testimony showed his family experienced general criminal activity rather than persecution tied to membership in any specific protected category. Accordingly, the court found no abuse of discretion in the BIA's refusal to remand the case for further proceedings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether substantial evidence supported the BIA's finding that the applicant's proposed particular social group was not cognizable under immigration law
Whether the applicant established eligibility for withholding of removal based on persecution
Whether the applicant demonstrated entitlement to Convention Against Torture protection
Whether the BIA abused its discretion in denying remand based on the applicant's pro se status

Procedural posture

The Fifth Circuit reviewed the BIA's decision dismissing the applicant's appeal from the immigration judge's denial of withholding of removal and CAT relief, applying substantial evidence review to factual findings and de novo review to legal conclusions.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Juan Ricardo Flores, a native and citizen of Mexico, petitions for review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his application for withholding of removal and relief under the Convention Against Torture (CAT) and denying his request to remand the proceeding so that he could propose additional particular social groups. Because Flores does not challenge the BIAs determinations that he waived his right to apply for asylum and that he was provided an opportunity to present evidence in support of his application, he has abandoned these claims. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).

We review the BIAs decision and consider the immigration judges decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial evidence and legal determinations are reviewed de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

Substantial evidence supports the BIAs determination that Flores was not entitled to withholding of removal. An applicant is entitled to withholding of removal if he shows that it is more likely than not that he will be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3). “A particular social group must: (1) consist of persons who share a common immutable characteristic; (2) be defined with particularity; and (3) be socially visible or distinct within the society in question.” Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th Cir. 2019). Because Flores failed to offer any evidence that his immediate family is perceived as a distinct group within Mexican society, the BIA did not err in determining that his proposed social group was not cognizable. See Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 786 (5th Cir. 2016).

Substantial evidence supports the BIAs determination that Flores was not entitled to protection under the CAT because he failed to offer any evidence that public officials have participated in, consented to, or willfully ignored gang violence. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 494 (5th Cir. 2015).

We review the denial of a remand for an abuse of discretion. Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014).

The BIA did not abuse its discretion in denying Floress request for a remand. Flores argues that the BIA abused its discretion in denying his request for a remand because his pro se status prevented him from understanding the legal requirements for defining a particular social group. Specifically, he asserts that with the assistance of counsel he would have also claimed membership in the particular social groups consisting of “family members of police officers,” “family members of victims murdered by cartels,” and “family members of Jamie Flores.” However, because Flores failed to identify any additional evidence that he would present on remand and because his testimony merely showed that his family was subjected to general criminal activity, he is unable to demonstrate any connection between his additionally proposed groups and any feared harm.

Based upon the foregoing, the petition for review is DENIED.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.