Case: 20-60259 Document: 00515871361 Page: 1 Date Filed: 05/21/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 20-60259 FILED May 21, 2021 Summary Calendar Lyle W. Cayce Clerk Yanira Elizabeth Rubio, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A097 290 015 Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam:* Yanira Elizabeth Rubio, a native and citizen of El Salvador, challenges the Board of Immigration Appeals’ (BIA) dismissal of her appeal from an Immigration Judge’s (IJ) order denying her applications for: asylum; * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60259 Document: 00515871361 Page: 2 Date Filed: 05/21/2021 No. 20-60259 withholding of removal; and relief under the Convention Against Torture (CAT). Her claims fail. In considering the BIA’s decision (and the IJ’s decision, to the extent it influenced the BIA), our court reviews legal conclusions de novo and factual findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial-evidence standard, “petitioner has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion”. Id. at 518 (internal quotation marks and citation omitted). Regarding the asylum claim, the BIA agreed with the IJ that Rubio entered the United States in 2005 but did not file an application for asylum until 2017. See 8 U.S.C. § 1158(a)(2)(B) (requiring alien’s application for asylum to be filed within one year of arrival in the United States unless alien can demonstrate changed or extraordinary circumstances). The BIA concluded Rubio waived review of the IJ’s determination she was ineligible for asylum based on her untimely application because she failed to brief the issue to the BIA. Our court lacks jurisdiction to review this dismissal. See Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009) (“[P]arties must fairly present an issue to the BIA to satisfy [8 U.S.C.] § 1252(d)’s exhaustion requirement”); see also Roy v. Ashcroft, 389 F.3d 132, 135 n.2 (5th Cir. 2004) (noting that, under 8 U.S.C. § 1158(a)(3), the court lacks jurisdiction to review the BIA’s time-bar determination for an asylum application). To qualify for withholding of removal, an alien “must demonstrate a clear probability of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion”. Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006) (internal quotation marks and citation omitted). If an alien can establish past persecution based on membership in a relevant group, the burden shifts to the Government to 2 Case: 20-60259 Document: 00515871361 Page: 3 Date Filed: 05/21/2021 No. 20-60259 show the threat no longer exists or can be mitigated through relocation; otherwise, the alien must demonstrate she will “more likely than not” suffer …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals