Sonia Almendarez-Funez v. Jefferson Sessions, III

Case: 17-60370 Document: 00514467742 Page: 1 Date Filed: 05/10/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 17-60370 May 10, 2018 Summary Calendar Lyle W. Cayce Clerk SONIA MARITZA ALMENDAREZ-FUNEZ, 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. A208 463 837 Before JONES, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM: * Sonia Maritza Almendarez-Funez, a native and citizen of Honduras, seeks review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal from the Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture. This court reviews only the BIA’s decision, except to the extent that the IJ’s ruling influences the BIA. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). The BIA’s legal conclusions are reviewed de novo; its factual findings, including whether an alien is eligible for asylum, for substantial evidence. * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 17-60370 Document: 00514467742 Page: 2 Date Filed: 05/10/2018 No. 17-60370 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). Under that standard, the BIA’s factual findings will not be reversed “unless the evidence compels it”. Wang, 569 F.3d at 536–37 (citing 8 U.S.C. § 1252; INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992)). Pursuant to 8 U.S.C. § 1101(a)(42)(A), an alien may be granted asylum if she “is unable or unwilling to return to” her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”. 8 U.S.C. § 1101(a)(42)(A). To qualify for relief based on membership in a particular social group, the alien must show she is a member “of a group of persons that share a common immutable characteristic that they either cannot change or should not be required to change because it is fundamental to their individual identities or consciences”. Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal quotation marks and citations omitted). First, Almendarez contends the BIA arbitrarily and capriciously deviated from its precedent and applied an incorrect standard in determining whether she alleged a cognizable particular social group. Our court, however, lacks jurisdiction to review an issue for which an alien failed to exhaust all administrative remedies available to her as of right. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); 8 U.S.C. § 1252(d)(1). Because Almendarez’ claim that the BIA relied on an erroneous legal standard is an issue “stemming from the BIA’s act of decisionmaking”, it could not have been raised prior to the BIA’s issuance of its decision. Omari v. Holder, 562 F.3d 314, 319–21 (5th Cir. 2009). She was therefore required to ...

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