Irma Merino Alvarado v. Jefferson Sessions, III

Case: 17-60193 Document: 00514536985 Page: 1 Date Filed: 07/02/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60193 FILED July 2, 2018 Summary Calendar Lyle W. Cayce Clerk IRMA MERINO ALVARADO, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 064 078 Before REAVLEY, GRAVES, and HO, Circuit Judges. PER CURIAM: * Irma Merino Alvarado, a native and citizen of El Salvador, petitions for review of the order of the Board of Immigration Appeals (BIA) dismissing her appeal of the Immigration Judge’s (IJ) denial of her application for withholding of removal and relief under the Convention Against Torture (CAT). In her petition, Merino Alvarado argues that substantial evidence does not support the BIA’s affirmance of the IJ’s adverse credibility determination and * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-60193 Document: 00514536985 Page: 2 Date Filed: 07/02/2018 No. 17-60193 conclusion that Merino Alvarado failed to introduce sufficient corroborative evidence and that substantial evidence does not support the BIA’s affirmance of the IJ’s alternative ruling on the merits of her application for withholding of removal and protection under the CAT. “Judicial review of a final order of removal is available only where the applicant has exhausted all administrative remedies of right.” Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); see 8 U.S.C. § 1252(d)(1). Merino Alvarado did not raise the following issues before the BIA: (1) the IJ erred as a matter of law because he failed to afford her an opportunity to explain inconsistencies by soliciting explanations for them during the hearing; (2) the inconsistency based on whether her ex-partner beat her daughters cannot support an adverse credibility determination because it does not enhance her claim; and (3) the IJ legally erred by failing to affirmatively ask Merino Alvarado why she failed to produce hospital records to corroborate her testimony. As the BIA could have corrected the IJ’s alleged errors had Merino Alvarado raised them, this court lacks jurisdiction to consider those claims. See Roy, 389 F.3d at 137. Further, in order to exhaust any claims relating to the BIA’s “act of decisionmaking,” Merino Alvarado was required to file a motion for reconsideration. Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009). She did not do so, thereby depriving this court of jurisdiction to consider whether the BIA committed legal error (1) by not making an alternative finding regarding past persecution, and by requiring her to show that the government would be unable or unwilling to protect her from harm, and (2) by considering only whether the government was willing to protect her, but not whether it was able to do so. See id. at 320- 21. On petition for review of ...

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