Villatoro-Barrios v. Garland

Case: 21-60070 Document: 00516407213 Page: 1 Date Filed: 07/26/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 26, 2022 No. 21-60070 Lyle W. Cayce Summary Calendar Clerk Jorge Villatoro-Barrios; Norvin Julio Villatoro- Castillo, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A208 566 753; A208 566 754 Before Southwick, Oldham, and Wilson, Circuit Judges. Per Curiam:* Jorge Villatoro-Barrios and his son Norvin Julio Villatoro-Castillo petition for review of a decision from the Board of Immigration Appeals denying asylum, withholding of removal, and protection under the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-60070 Document: 00516407213 Page: 2 Date Filed: 07/26/2022 No. 21-60070 Convention Against Torture. We DISMISS the petition in part and DENY the petition in part. FACTUAL AND PROCEDURAL BACKGROUND Villatoro-Barrios and Villatoro-Castillo (“Petitioners”) are citizens of Guatemala who entered the United States in December 2015. They were soon apprehended by the Department of Homeland Security, which commenced removal proceedings by serving both with notices to appear, charging them as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) for being present without admission or parole. At a hearing before an immigration judge (“IJ”) in February 2017, the Petitioners admitted the factual allegations and inadmissibility charge in their Notices to Appear. The IJ sustained the inadmissibility charge. In June 2017, Villatoro-Barrios filed for asylum, statutory withholding of removal, and protection under the Convention Against Torture (“CAT”), with Villatoro- Castillo as a derivative beneficiary. Both Petitioners testified in support of the applications for relief and protection at a hearing in 2019. The IJ denied the applications in 2019, finding (1) that the application for asylum was timebarred because Villatoro-Barrios had failed to show that he filed the application within one year of his December 2015 entry, or that an exceptional circumstance otherwise excused the delay, and (2) that, in the alternative, Villatoro-Barrios was ineligible for asylum on the merits. The IJ then found that because Villatoro-Barrios was unable to demonstrate eligibility for asylum, he was also unable to establish eligibility under the higher standard of proof required for withholding of removal under 8 U.S.C. § 1231(b)(3). Next, the IJ found that Villatoro-Barrios’s testimony that he had experienced threats without physical harm did not support that he was tortured. The IJ also found he had failed to establish that it was more likely than not that he would be tortured if returned to Guatemala. Finally, 2 Case: 21-60070 Document: 00516407213 Page: 3 Date Filed: 07/26/2022 No. 21-60070 the IJ found that the Petitioners “did not have the necessary documents to demonstrate that they would be able to travel back to Guatemala” and denied the request for voluntary departure in the alternative. With assistance of counsel, the Petitioners appealed the decision to the …

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