Case: 17-60841      Document: 00514714235         Page: 1    Date Filed: 11/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-60841                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                    November 7, 2018

JOEL CALINDERS-GUERRA,                                                 Lyle W. Cayce
                                                                            Clerk
                                                 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. A098 117 728


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Joel Calinders-Guerra is a native and citizen of Guatemala who entered
the United States in 2004 without having been admitted or paroled. The Board
of Immigration Appeals (BIA) denied his second motion to reopen in absentia
removal proceedings, finding that he had not provided sufficient evidence that
he would suffer persecution in Guatemala based on his membership in a
particular social group. He filed a timely petition for review.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 17-60841

      This court reviews the denial of a motion to reopen under a “highly
deferential abuse-of-discretion standard, regardless of the basis of the alien’s
request for relief.” Gomez-Palacios v. Holder, 

, 358 (5th Cir. 2009)
(citation omitted).
      Religious Persecution
      Calinders-Guerra faults the BIA for failing to address his claim of
religious persecution. His attached asylum application stated that he was
seeking relief from removal based on “religion” as well as “membership in a
particular social group,” but he did not argue religious persecution in his
motion to reopen.     Because Calinders-Guerra did not “raise, present, or
mention” the issue of religious persecution in his motion to reopen, he has
failed to satisfy the exhaustion requirement of 8 U.S.C. § 1252(d)(1), and this
court lacks jurisdiction to consider the issue on appeal. Omari v. Holder, 

, 321 (5th Cir. 2009) (internal quotation marks and citation omitted).
      Changed Country Conditions
      Calinders-Guerra claims that the BIA erred in failing to consider his
claim of changed country conditions.       Because the BIA determined that
Calinders-Guerra had failed to establish prima facie eligibility for asylum
because he had not shown persecution based on a particular social group, it
had no need to decide whether he had also presented material evidence of
changed country conditions. See Ogbemudia v. INS, 

, 600 (5th
Cir. 1993).
      Social Group Persecution
      According to Calinders-Guerra, he is eligible for asylum because he fears
persecution if returned to Guatemala based on membership in a particular
social group consisting of his family. He claimed that after he fled Guatemala,
his family experienced “threats and extreme violence.” His brother had been



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                                 No. 17-60841

attacked multiple times by unknown assailants and had gone into hiding in
another town. Three of his cousins had been murdered. His sister had fled
from an abusive marriage, and her estranged husband had threatened to hurt
her and her family.
      As the Government points out, though, Calinders-Guerra offers no
evidence that his relatives’ familial relationship was a central reason for the
harm they suffered. See Shaikh v. Holder, 

, 864 (5th Cir. 2009);
see also 8 U.S.C. § 1158(b)(1)(i). As such, the BIA did not abuse its discretion
in rejecting Calinders-Guerra’s claim of persecution based on membership in a
particular social group. See 

.
      Ability of Guatemalan Government to Control Persecutors
      Calinders-Guerra has not shown that he could not go to the Guatemalan
authorities or that the authorities in his home country are unable or unwilling
to intervene to protect him. See Tesfamichael v. Gonzales, 

, 113
(5th Cir. 2006). All he offers in his brief is a conclusory statement that he has
“established” that Guatemalan authorities “would condone his persecution or
would be completely helpless to protect him,” followed by a recounting of the
statements from his declaration in support of his asylum application regarding
several unreported robberies he experienced in Guatemala and a reference to
general statements from a Human Rights Watch Report regarding corruption
in the Guatemalan justice system. This is insufficient to meet his burden of
showing that the evidence supports a conclusion contrary to the one reached
by the BIA. See 

.
      Ability to Relocate
      The BIA concluded that Calinders-Guerra had not shown that he would
be unable to avoid his sister’s abusive husband by relocating to a different part
of Guatemala. Calinders-Guerra claims that he must live near his family in



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                                   No. 17-60841

Guatemala because he has no other connections in the country and would be
unable to establish financial independence without their support. Though
“social and family ties” are factors to be considered in determining whether
internal relocation is reasonable, they “are not necessarily determinative.”
8 C.F.R. § 1208.13(b)(3). Moreover, Calinders-Guerra has demonstrated an
ability to live independently as an adult in the United States, and he offers no
evidence to support his claim that he could not do so in Guatemala. Calinders-
Guerra has therefore failed to meet his burden of showing that relocation
within Guatemala “would be unreasonable.” Lopez-Gomez v. Ashcroft, 

, 445 (5th Cir. 2001) (per curium).
      Evidence of Prior Proceedings
      According to Calinders-Guerra, the BIA “considered evidence that was
irrelevant to the standard for a motion to reopen” based on changed country
conditions. He points to a footnote in the BIA order that states:
      The Board, on December 4, 2014, denied reopening of these
      proceedings based on the respondent’s potential eligibility to
      adjust his status to a lawful permanent resident based on his
      marriage to a United States citizen.
Other than the fact that the footnote appears at the end of the sentence
denying the motion to reopen, there is no evidence, as Calinders-Guerra
suggests, that the BIA “considered” the prior proceedings as a basis for denying
his second motion to reopen. As such, Calinders-Guerra has failed to show that
the BIA abused its discretion with respect to its inclusion of the footnote.
See 

.
      The petition for review is DISMISSED for lack of jurisdiction with
respect to Calinders-Guerra’s claim of religious persecution and DENIED with
respect to his remaining claims.




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