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Sacalxot Bautista v. Gonzales, 05-60606 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-60606 Visitors: 11
Filed: Aug. 22, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 22, 2006 Charles R. Fulbruge III Clerk No. 05-60606 Summary Calendar DORA ELENA SACALXOT BAUTISTA, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of an Order of the Board of Immigration Appeals BIA No. A72-450-165 - Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM:* Dora Elena Sacalxot Bautista (Sacalxot), a ci
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                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 22, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-60606
                          Summary Calendar



DORA ELENA SACALXOT BAUTISTA,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A72-450-165
                        --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Dora Elena Sacalxot Bautista (Sacalxot), a citizen and

native of Guatemala, petitions this court to review the decision

of the Board of Immigration Appeals (BIA) affirming the denial of

her application for asylum and withholding of removal.       Sacalxot

argues that the immigration judge (IJ) erred in finding that she

did not suffer past persecution on account of being a member in a

particular social group and that she did not have a well-founded

fear of future persecution if she returned to Guatemala.        She


     *
       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.
                           No. 05-60606
                                -2-

contends that her credible testimony was sufficient to prove that

the man she lived with and the father of her two children, Edgar

Machado, was a member of the guerrillas.   She further contends

that her credible testimony was sufficient to prove that Machado

and her cousins were killed by the guerrillas and that the

guerrillas were looking for her in Guatemala.

     Although the IJ determined that Sacalxot’s testimony was

credible, the IJ also determined that it was insufficient to

prove that Sacalxot suffered past persecution or that she had a

well-founded fear of future persecution if she was returned to

Guatemala.   These findings by the IJ are supported by substantial

evidence and the evidence in the record does not compel a

contrary conclusion.   See Carbajal-Gonzalez v. INS, 
78 F.3d 194
,

197 (5th Cir. 1996).   Because the IJ correctly found that

Sacalxot failed to make the requisite showing for asylum, he was

also correct in finding that she could not meet the more

stringent standard for proving her eligibility for withholding of

removal.   See Girma v. INS, 
283 F.3d 664
, 667 (5th Cir. 2002).

     Sacalxot also challenges the IJ’s determination that she

failed to meet the hardship requirement for cancellation of

removal.   However, this court does not have jurisdiction to

review the IJ’s discretionary determination, in rejecting

Sacalxot’s application for cancellation of removal, that Sacalxot

had not shown that her United States citizen daughter would

suffer an “exceptional and extremely unusual hardship.”      See
                           No. 05-60606
                                -3-

Rueda v. Ashcroft, 
380 F.3d 821
, 831 (5th Cir. 2004); 8 U.S.C.

§ 1252(a)(2)(B)(i).

     Sacalxot does not challenge the IJ’s conclusions that she is

ineligible for special rule cancellation of removal under the

Nicaragua Adjustment and Central American Relief Act (NACARA) or

for voluntary departure.   She also does not specifically

challenge the IJ’s conclusion that she is not entitled to relief

under the Convention Against Torture (CAT).    She asserts that she

is entitled to relief under the CAT, but fails to state the

showing required or the evidence which she contends shows her

entitlement.   Therefore, any issues relating to special rule

cancellation of removal under the NACARA, voluntary departure,

and relief under the CAT are deemed waived.    See Calderon-

Ontiveros v. INS, 
809 F.2d 1050
, 1052 (5th Cir. 1986).

     Finally, Sacalxot has not demonstrated sufficient prejudice

to prevail on her due process claims.     See DeZavala v. Ashcroft,

385 F.3d 879
, 883 (5th Cir. 2004).

     Accordingly, the petition for review is DENIED IN PART and

DISMISSED IN PART FOR LACK OF JURISDICTION.

Source:  CourtListener

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