Case: 19-60355 Document: 00516160370 Page: 1 Date Filed: 01/10/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED January 10, 2022 No. 19-60355 Lyle W. Cayce Clerk Leon Santos-Zacaria, also known as Leon Santos- Sacarias, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A098 372 949 Before Owen, Chief Judge, and Clement and Higginson, Circuit Judges. Priscilla R. Owen, Chief Judge: Leon Santos-Zacaria (Santos), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’s (BIA’s) decision denying her application for withholding of removal and for relief under the Convention Against Torture (CAT). We deny in part and dismiss in part for lack of jurisdiction. Case: 19-60355 Document: 00516160370 Page: 2 Date Filed: 01/10/2022 No. 19-60355 I Santos, who is a transgender woman and is attracted to men, alleged that she was sexually assaulted by a neighbor in Guatemala at the age of 12 for being gay and asserted that she was likely to face persecution if she returned to Guatemala due to her sexual orientation and gender identity. The immigration judge (IJ) denied her application for withholding of removal, concluding that Santos’s prior assault was insufficient to establish past persecution. The IJ also denied Santos’s claim for relief under the CAT. Santos appealed to the BIA. The BIA dismissed her appeal. First, the BIA concluded that Santos’s allegation of sexual assault was sufficient to establish past persecution on account of membership in a particular social group. Consequently, Santos was entitled to a presumption of future persecution. However, the BIA ruled that the government had rebutted the presumption. The BIA also affirmed the IJ’s ruling that Santos had not established eligibility for relief under the CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to consider relevant evidence. Santos filed a timely petition for review. II Santos contests the BIA’s decision that she is not eligible for withholding of removal. Whether an applicant is eligible for withholding of removal is a factual determination that this court reviews under the substantial evidence standard. 1 “The substantial evidence standard requires only that the BIA’s decision be supported by record evidence and be substantially reasonable.” 2 “[R]eversal is improper unless we decide ‘not 1 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). 2 Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). 2 Case: 19-60355 Document: 00516160370 Page: 3 Date Filed: 01/10/2022 No. 19-60355 only that the evidence supports a contrary conclusion, but [also] that the evidence compels it.’” 3 “To be eligible for withholding of removal, an applicant must demonstrate a ‘clear probability’ of persecution upon return.” 4 “A clear probability means that it is more likely than not that the applicant’s life or freedom would be threatened by persecution on account of either h[er] race, religion, nationality, membership in a particular social group, or political opinion.” 5 If …
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