Full Opinion (html_with_citations)

Case: 22-60505     Document: 00516892233         Page: 1    Date Filed: 09/12/2023




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

                                ____________                                  FILED
                                                                      September 12, 2023
                                 No. 22-60505                            Lyle W. Cayce
                                ____________                                  Clerk

   Yanci Liseth Munoz-De Zelaya; Jose Roberto Zelaya
   Guerrero; Jose Roberto Zelaya-Munoz; Yanci Mariela
   Zelaya-Munoz,

                                                                    Petitioners,

                                      versus

   Merrick Garland, U.S. Attorney General,

                                                                    Respondent.
                  ______________________________

                 Appeal from the Board of Immigration Appeals
                          Agency Nos. A208 278 752,
                         A209 842 728, A209 842 729,
                                A209 842 730
                  ______________________________

   Before Willett, Engelhardt, and Oldham, Circuit Judges.
   Per Curiam:
         The petitioners in this immigration case are a husband and wife who
   applied for asylum and withholding of removal based on their membership in
   the proposed particular social group of “Salvadoran business owners.” We
   agree with the Board of Immigration Appeals that this group is not cognizable
   under the immigration laws. Because petitioners failed to exhaust their
   remaining arguments before the Board, we DENY the petition for review.
Case: 22-60505       Document: 00516892233           Page: 2      Date Filed: 09/12/2023




                                      No. 22-60505


                                            I
            Yanci Liseth Munoz-De Zelaya, her husband Jose Roberto Zelaya-
   Guerrero (“Guerrero”), and their two children are all natives and citizens of
   El Salvador.1 The family entered the United States in increments, between
   2015 and 2016. The Department of Homeland Security (“DHS”) issued a
   Notice to Appear (“NTA”) to Guerrero in 2015. The NTA charged him
   with removability as being present in the United States without
   authorization. DHS issued NTAs to each of Munoz-De Zelaya and the two
   children a year later, charging them also with removability as being present
   without authorization. Munoz-De Zelaya and Guerrero applied for asylum
   and withholding of removal. They included their two children as derivative
   beneficiaries of and riders on Munoz-De Zelaya’s application.2
            Guerrero’s application cited multiple instances during which gang
   members intimidated him and extorted ever-increasing amounts of money
   from him at his business selling bicycle parts. When Guerrero could not pay
   the rising extortion fees after several months, a gang member threatened to
   kill him, and put a gun to his head. Guerrero did not report the attack to the
   police, because he believed that reporting would get him killed. Guerrero
   then left El Salvador for the United States. But because the family lacked the
   funds to travel together, Munoz-De Zelaya and the children remained for a
   spell.
            Munoz-De Zelaya based her application on the extortion that she
   faced after she moved to a new town within El Salvador to escape
   intimidation following her husband’s departure. According to Munoz-De
            _____________________
            1
            Munoz-De Zelaya’s opening brief renders her marital surname as “De-Zalaya,”
   whereas the record renders her name as “De Zelaya.” We use the latter.
            2
             Because the children are derivative beneficiaries of and riders on Munoz-De
   Zelaya’s application, we refer only to Munoz-De Zelaya.




                                            2
Case: 22-60505       Document: 00516892233         Page: 3    Date Filed: 09/12/2023




                                    No. 22-60505


   Zelaya, three gang members began extorting her for money every month
   while she was selling bicycle parts in her new town’s market. On one
   occasion, when she could not meet the gang’s demands, gang members
   threatened to initiate her son into the gang, and to take her children to a home
   next door that the gang used to torture people. A gang member pointed a gun
   at her head during this incident. The gang members then searched her home
   for money, pulled Munoz-De Zelaya by her hair, and beat her, leaving her
   unconscious. Gang members also threatened to kill a neighbor who saw the
   attack unfold. The next day, Munoz-De Zelaya fled the country with her
   children. She did not report the incident to the authorities, because she
   believed that the police forces were corrupt and passed information to the
   gangs.
            The immigration judge (IJ) denied the family asylum and withholding
   of removal, concluding that “extorted business owners” does not constitute
   a particular social group (PSG), that no showing of nexus is possible without
   a PSG, and that extortion is not persecution. The IJ also found that Munoz-
   De Zelaya and Guerrero had not testified that any family members
   experienced problems beyond those facing anyone living in El Salvador. And
   while the IJ determined that the family did have “subjectively valid fears”
   about returning to El Salvador, the IJ also determined that the fears were not
   “objectively reasonable.” Finally, the IJ concluded that the family’s
   testimony about the impossibility of relocation within El Salvador was
   “entirely speculative.”
            The Board of Immigration Appeals (BIA) dismissed the appeal,
   agreeing with the IJ’s ruling that the family had not asserted a cognizable
   PSG. The BIA found it “unnecessary to address the respondents’ remaining
   arguments on appeal as adjudication of those issues will not alter the outcome
   of these proceedings.” Munoz-De Zelaya and Guerrero timely petitioned for
   our review.



                                          3
Case: 22-60505      Document: 00516892233          Page: 4    Date Filed: 09/12/2023




                                    No. 22-60505


                                         II
          Munoz-De Zelaya and Guerrero challenge the denial of their
   applications for asylum and withholding of removal. We review the BIA’s
   decision, and we consider the IJ’s decision only to the extent it influenced the
   BIA. Orellana-Monson v. Holder,
685 F.3d 511, 517
 (5th Cir. 2012). We
   consider legal questions de novo, and we review the factual determination
   that an individual is not eligible for asylum or withholding of removal for
   substantial evidence. Id.; Chen v. Gonzales,
470 F.3d 1131, 1134
 (5th Cir.
   2006). Under the substantial-evidence standard, reversal is improper unless
   the evidence not only supports a contrary conclusion but compels it.
   Orellana-Monson,
685 F.3d at 518
.

                                         III
                                          A
          To be eligible for asylum, an applicant must show, among other things,
   that “race, religion, nationality, membership in a particular social group, or
   political opinion was or will be at least one central reason for persecuting the
   applicant.”
8 U.S.C. § 1158
(b)(1)(B)(i); accord Orellana-Monson,
685 F.3d at 518
. A particular social group is cognizable only if it is “(i) characterized by
   an immutable trait; (ii) definable with reasonable particularity; and (iii)
   socially distinct.” Garcia-Gonzalez v. Garland, __ F.4th __, No. 22-60501,
2023 WL 5009266
, at *3 (5th Cir. Aug. 7, 2023) (footnote omitted).
   Withholding of removal requires a showing that the applicant more likely
   than not would be persecuted on account of a protected ground. Jaco v.
   Garland,
24 F.4th 395, 401
 (5th Cir. 2021). “Withholding of removal is a
   higher standard than asylum,” so an applicant who “does not meet the bar
   for asylum . . . also does not meet the standard for withholding of [removal].”
   Efe v. Ashcroft,
293 F.3d 899, 906
 (5th Cir. 2002).




                                          4
Case: 22-60505      Document: 00516892233          Page: 5   Date Filed: 09/12/2023




                                    No. 22-60505


          Munoz-De Zelaya and Guerrero argued that they suffered persecution
   due to their membership in the proposed PSG of “Salvadoran business
   owners.” The BIA rejected that proposed PSG, reasoning that
   “[e]mployment, including business ownership, can be changed and is not
   fundamental to an individual’s identity or conscience as an immutable
   characteristic.” We agree. “Business owner” is not an immutable trait, and
   we have recognized as much on several previous occasions. See Rivera-
   Alvarez v. Garland, No. 22-60595,
2023 WL 4235548
, at *1 (5th Cir. June 28,
   2023); Alvarado-Velasquez v. Garland, No. 20-60930,
2022 WL 2072860
, at
   *1 (5th Cir. June 9, 2022) (“The BIA concluded petitioner’s proposed social
   group ‘Honduran business owners’—is not cognizable under the INA. We
   agree.”); Penado-Hernandez v. Barr,
795 F. App’x 283
, 285 (5th Cir. 2020)
   (“[B]usiness owners, wealthy Salvadorans, and persons subject to economic
   extortion are not protected groups.”).
          Because a PSG is an essential element of claims for asylum and
   withholding of removal, Munoz-De Zelaya and Guerrero cannot succeed on
   either claim. Therefore, we need not consider their arguments about nexus
   and persecution. See INS v. Bagamasbad,
429 U.S. 24, 25
 (1976) (per curiam)
   (“As a general rule courts and agencies are not required to make findings on
   issues the decision of which is unnecessary to the results they reach.”).
                                         B
          Munoz-De Zelaya and Guerrero also ask us to consider an alternative
   PSG based on family status, and to take notice of what they describe as certain
   policy changes from the Department of Homeland Security. But Munoz-De
   Zelaya and Guerrero did not present these arguments to the BIA. We “may
   review a final order of removal only if . . . the alien has exhausted all
   administrative remedies available to the alien as of right.”
8 U.S.C. § 1252
(d)(1). This exhaustion requirement “is a non-jurisdictional rule” that
   “merely prescrib[es] the method by which the jurisdiction granted the courts



                                         5
Case: 22-60505      Document: 00516892233          Page: 6    Date Filed: 09/12/2023




                                    No. 22-60505


   by Congress is to be exercised.” Santos-Zacaria v. Garland,
598 U.S. 411, 419
   (2023) (internal quotation marks and citations omitted). In other words,
   Ҥ 1252(d)(1) imposes an exhaustion requirement, which is a quintessential
   claim-processing rule.” Id. at 417. “A claim-processing rule requiring parties
   to take certain procedural steps in, or prior to, litigation, may be mandatory
   in the sense that a court must enforce the rule if timely raised.” Fort Bend
   Cnty. v. Davis,
139 S. Ct. 1843, 1844
 (2019) (internal quotation marks and
   citation omitted).
          Regardless of whether § 1252(d)(1)’s claim-processing rule is
   mandatory in the present context, we decline to reach the arguments that
   Munoz-De Zelaya and Guerrero have failed to exhaust. See Umana-Escobar
   v. Garland,
69 F.4th 544, 550
 (9th Cir. 2023) (similar); Odei v. Garland,
71 F.4th 75
, 78 n.1 (1st Cir. 2023) (similar); Lopez-Hernandez v. Garland, No.
   22-3990,
2023 WL 4626785
, at *4 (6th Cir. July 19, 2023) (similar); see also
   Ud Din v. Garland,
72 F.4th 411, 420
 (2d Cir. 2023) (treating the rule as
   “mandatory,” but also recognizing some “exception[s]”); Tepas v. Garland,
73 F.4th 208, 213
 (4th Cir. 2023) (treating the rule as “mandatory”).
          Finally, Munoz-De Zelaya and Guerrero argue that their original
   notices to appear failed to include the date and time of the initial hearing and
   were therefore legally insufficient under 8 U.S.C § 1229(a)(1). Cf. Niz-
   Chavez v. Garland,
141 S. Ct. 1474
, 1478 (2021). But the BIA has concluded
   that “the time and place requirement . . . [is] not a jurisdictional
   requirement.” Matter of Fernandes,
28 I. & N. Dec. 605
, 608 (BIA 2022).
   Likewise, we have held that “a notice to appear is sufficient to commence
   proceedings even if it does not include the time, date, or place of the initial
   hearing.” Maniar v. Garland,
998 F.3d 235, 242
 (5th Cir. 2021) (internal
   quotation marks and citation omitted). Even if the initial notices that Munoz-
   De Zelaya and Guerrero received were defective, those defects did not affect




                                          6
Case: 22-60505     Document: 00516892233          Page: 7   Date Filed: 09/12/2023




                                   No. 22-60505


   the IJ’s or the BIA’s jurisdiction. Section 1252(d)(1)’s exhaustion
   requirement thus applies, and we decline to consider this argument further.

                                       IV
         Regardless of geography, “business owners” are not a protected
   social group. Because Munoz-De Zelaya and Guerrero did not exhaust their
   additional arguments before the BIA, the petition for review is DENIED.




                                        7