Ortiz-Hernandez v. Garland

O
Case: 20-60651     Document: 00515863533         Page: 1     Date Filed: 05/14/2021




              United States Court of Appeals
                   for the Fifth Circuit                       United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                  May 14, 2021
                                  No. 20-60651                   Lyle W. Cayce
                                Summary Calendar                      Clerk


   Jorge Alfredo Ortiz-Hernandez,

                                                                           Petitioner,

                                       versus

   Merrick Garland, U.S. Attorney General,

                                                                         Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                              BIA No. A212 945 919


   Before Jolly, Graves, and Costa, Circuit Judges.
   Per Curiam:*
          Jorge Alfredo Ortiz-Hernandez, a native and citizen of Mexico,
   petitions this court to review the decision of the Board of Immigration
   Appeals (BIA) affirming the decision of the Immigration Judge (IJ) denying
   his application for withholding of removal and relief under the Convention


          *
            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   opinion should not be published and is not precedent except under the limited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: 20-60651      Document: 00515863533            Page: 2   Date Filed: 05/14/2021




                                      No. 20-60651


   Against Torture (CAT). Ortiz-Hernandez specifically contends that the BIA
   erred in its conclusion that his proposed particular social group (PSG),
   Mexicans who have lived in the United States, was not a legally cognizable
   PSG, and that he did not establish that he would face persecution on account
   of this proposed PSG if he returned to Mexico. He also argues that the BIA
   erred in its conclusion that he was not eligible for relief under the CAT,
   contending that he would be tortured by the cartels if he returned to Mexico
   and that the Mexican government would acquiesce in his torture.
          We review factual findings under the substantial evidence standard
   and legal questions de novo. Orellana-Monson v. Holder, 685 F.3d 511, 517-18
   (5th Cir. 2012). Under the substantial evidence standard, we may not reverse
   the BIA’s factual findings unless “the evidence was so compelling that no
   reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d
   531, 537 (5th Cir. 2009). Among the factual findings that we review for
   substantial evidence is the conclusion that an alien is not eligible for
   withholding of removal and for relief under the CAT. Chen v. Gonzales, 470
   F.3d 1131, 1134 (5th Cir. 2006).
          Ortiz-Hernandez asserts that he would likely be persecuted in Mexico
   on account of his membership in his proposed PSG because people would
   perceive him as wealthy after having lived in the United States. However,
   substantial evidence supports the decision that Hernandez did not establish
   that he was a member of a legally cognizable PSG, particularly the conclusion
   that Mexicans who have lived in the United States is not a particular or
   socially visible group. See Cabrera v. Sessions, 890 F.3d 153, 162 (5th Cir.
   2018). Furthermore, his argument that the BIA abused its discretion by not
   employing the requisite case-by-case analysis in determining the cognizability
   of his proposed PSG is unavailing, as the BIA affirmed the IJ’s decision in
   which the IJ applied the requisite analysis. See Roy v. Ashcroft, 389 F.3d 132,
   139 (5th Cir. 2004). Ortiz-Hernandez has also failed to demonstrate a “clear



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Case: 20-60651      Document: 00515863533          Page: 3    Date Filed: 05/14/2021




                                    No. 20-60651


   probability” of persecution based on his proposed PSG. Revencu v. Sessions,
   895 F.3d 396, 402 (5th Cir. 2018); see Chen, 470 F.3d at 1138. Ortiz-
   Hernandez does not present any evidence that he will be targeted for any
   reasons other than purely financial or general criminal motives, which we
   have held do not rise to the level of persecution or constitute persecution on
   account of a protected ground. See Garcia v. Holder, 756 F.3d 885, 890 (5th
   Cir. 2014); Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012);
   Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004). Additionally, while
   Ortiz-Hernandez cites to the general conditions of Mexico as evidence that
   he would face persecution, he does not show specific details indicating that
   he personally, on account of his proposed PSG, would be singled out for
   persecution. See Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).
          Substantial evidence also supports the decision that Ortiz-Hernandez
   failed to show that “it is more likely than not that he would be tortured” if
   he returned to Mexico. Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir.
   2005) (internal quotation marks and citation omitted). Ortiz-Hernandez
   relies on a news article reporting the cartels’ targeting of families and a 2017
   human rights report on Mexico; however, he fails to show that the evidence
   compels the conclusion that it is more likely than not that he would be
   tortured if removed to Mexico. See id.; Chen, 470 F.3d at 1134. Furthermore,
   Ortiz-Hernandez’s citation of general country conditions as evidence that he
   would be tortured do not suffice to show that the Mexican government would
   acquiesce to his torture, and his assertion that the Mexican government is
   unable to protect its citizens “does not necessarily amount to acquiescence.”
   Qorane v. Barr, 919 F.3d 904, 911 (5th Cir. 2019).
          Accordingly, the petition for review is DENIED.




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