Fuentes-Guevara v. Garland

Case: 21-60077 Document: 00516440037 Page: 1 Date Filed: 08/19/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 19, 2022 No. 21-60077 Lyle W. Cayce Clerk Sara Raquel Fuentes-Guevara, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206 727 113 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Sara Raquel Fuentes-Guevara, a native and citizen of El Salvador, petitions for review of an order by the Board of Immigration Appeals affirming the immigration judge’s denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60077 Document: 00516440037 Page: 2 Date Filed: 08/19/2022 No. 21-60077 We review the BIA’s decision and consider the IJ’s underlying decision only insofar as it influenced the BIA’s decision. See Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). Further, we review Fuentes- Guevara’s arguments under the substantial evidence standard. See Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). This requires that she demonstrate “the evidence [was] so compelling that no reasonable factfinder could reach a contrary conclusion.” Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). Fuentes-Guevara fails this standard. In relevant part, she argues that both the IJ and BIA erred by failing to (1) provide a reasoned analysis regarding cognizability, or (2) address the nexus between her proposed social group (PSG) and alleged persecution. She also contends that the BIA erred in determining that her PSGs were not cognizable. But four points stand in the way of Fuentes-Guevara’s desired relief. First, some of these arguments were not raised to the BIA. Fuentes- Guevara did not previously claim that the IJ erred by failing to engage in a reasoned analysis or address the nexus between her PSG and the alleged persecution. Neither did she seek reconsideration from the BIA once its decision issued, revealing the same analytical concerns. 1 We therefore lack jurisdiction over these claims. See Martinez-Guevara, 27 F.4th at 359–60; 8 U.S.C. § 1252(d)(1). Neither can we conclude the BIA reversibly erred by affirming the IJ’s rejection of Fuentes-Guevara’s PSGs. “[C]ognizibility. . . presents a 1 These claims are “new defect[s] that the BIA ‘never had a chance to consider,’” which “arise[] ‘only as a consequence of’ the Board’s [alleged] error.” Martinez-Guevara v. Garland, 27 F.4th 353, 359–60 (5th Cir. 2022) (citations omitted). This means “[w]e treat those claims as unexhausted unless the petitioner presents them to the Board in a motion to reconsider.” Id. at 360. 2 Case: 21-60077 Document: 00516440037 Page: 3 Date Filed: 08/19/2022 No. 21-60077 legal question” whose “answer indisputably turns on findings of fact.” Cantarero-Lagos v. Barr, 924 F.3d 145, 150 (5th Cir. 2019) (accumulating cases). On this …

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