Unreported / Non-Citable
Background
Nanci Tatiana Diaz-Guevara, a native and citizen of El Salvador, applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) before an Immigration Judge. The IJ denied all relief and ordered her removed. The Board of Immigration Appeals dismissed her appeal, and she petitioned the Fifth Circuit for review.
Before the Fifth Circuit, Diaz-Guevara raised challenges to the denial of her asylum and withholding claims, arguing she had established past persecution and a well-founded fear of future persecution. She also attempted to raise new claims based on a presidential executive order and humanitarian asylum grounds that she had not presented to the BIA.
The Court’s Holding
The Fifth Circuit denied the petition for review in a per curiam opinion. The court first declined to consider Diaz-Guevara’s unexhausted claims regarding the executive order and humanitarian asylum, holding that because she had not presented those arguments to the BIA, the court lacked jurisdiction to address them under 8 U.S.C. § 1252(d)(1).
On the asylum and withholding claims, the court applied the demanding “compels” standard, under which reversal requires not merely that the evidence supports a contrary conclusion, but that it compels one. The court found Diaz-Guevara had not met that bar—she offered only the bare assertion that she had established past persecution and a well-founded fear of future persecution, without identifying specific evidence to that effect. Her CAT claim likewise failed because she had not shown it was more likely than not she would be tortured with official acquiescence upon return to El Salvador.
Key Takeaways
- Claims not exhausted before the BIA cannot be raised for the first time in a petition for review; the Fifth Circuit will decline jurisdiction over such unexhausted arguments under 8 U.S.C. § 1252(d)(1).
- To obtain reversal of a BIA persecution finding, a petitioner must point to specific record evidence that compels a contrary conclusion — bare assertions of past persecution or well-founded fear are insufficient.
- CAT protection requires a showing that it is more likely than not the petitioner will be tortured with the acquiescence of government officials upon repatriation; failure to make that showing results in denial.
Why It Matters
This unpublished decision reinforces two recurring and consequential principles in Fifth Circuit immigration practice: the strict exhaustion requirement that bars judicial review of claims not first presented to the BIA, and the high evidentiary threshold asylum and withholding petitioners must clear to overcome agency fact-findings on appeal. Attorneys representing asylum-seekers must ensure all legal theories—including those based on executive actions—are squarely raised before the BIA, or they are forfeited.
The case also illustrates the practical difficulty of challenging credibility and persecution findings on petition for review. Vague or conclusory characterizations of the record will not suffice; counsel must marshal specific evidence demonstrating the agency’s conclusions were not merely questionable but compelled to be decided differently.