United States Court of Appeals

for the Fifth Circuit

No. 20-60944

Maryuri Yessenia Castellon-Villalobos; 

Daniela Del Socorro Garcia-Castellon; 

Fernando Daniel Garcia-Castellon, 

Petitioners,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals

No. A 208 681 668

No. A 208 681 669

No. A 208 681 670

Before Smith, Wiener, and Southwick, Circuit Judges.

Per Curiam:*

Maryuri Castellon-Villalobos and her two minor children, Daniel 

Garcia-Castellon and Fernando Garcia-Castellon, petition for review of the 

* 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opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 8, 2022

Lyle W. Cayce

Clerk

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decision of the Board of Immigration Appeals (“BIA”) dismissing their 

appeal of the orders of the immigration judge (I.J.) denying asylum, withholding of removal, and protection under the Convention Against Torture 

(“CAT”). Because the BIA’s findings were supported by sufficient evidence, 

we deny the petition.

I.

The petitioners are citizens of Nicaragua. Castellon-Villalobos entered the United States illegally in 2015.1

 Shortly thereafter, the Department 

of Homeland Security initiated proceedings to remove her. It sent her a 

notice to appear in December 2015 but did not specify the date and time of 

her removal hearing. That information came in a separate notice of hearing 

sent to Castellon-Villalobos in February 2016. Castellon-Villalobos appeared 

at her hearing. She later acknowledged proper service of her notice to appear.

Castellon-Villalobos applied for asylum, withholding of removal, and 

protection under the CAT. Her application noted that she had an abusive 

relationship with her mother, that she had been threatened with kidnapping 

of her children and murder, and that her mother had left the Frente Sandinista de Liberación Nacional (“FSLN”), the ruling party in Nicaragua. She 

also identified a particular social group to which she claimed to belong: 

“Female Nicaraguan Victims of Domestic Violence.”

At the merits hearing, Castellon-Villalobos moved to terminate proceedings for want of jurisdiction. She maintained that, under Pereira v. Sessions, 138 S. Ct. 2105, 2113–14 (2018), her notice to appear had been defective 

because it did not specify the date and time of her hearing. The I.J. denied 

1 The record does not reflect independent findings regarding Castellon-Villalobos’s 

children. The children’s claims wholly derive from Castellon-Villalobos’s, so we do not

separately address them.

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that motion, reasoning that Pereira did not alter the immigration court’s 

jurisdiction. At the hearing, Castellon-Villalobos provided additional facts, 

including that her uncle had attempted to sexually assault and kill her when 

she was twelve and that she feared torture from the FSLN because she had 

refused to join the party. The I.J. found Castellon-Villalobos to be credible 

but nonetheless rejected her application and ordered her removed.

The BIA dismissed Castellon-Villalobos’s appeal. It affirmed the I.J.’s 

denial of Castellon-Villalobos’s jurisdictional challenge. The BIA also agreed 

with the I.J. that Castellon-Villalobos had not established a probability of persecution on account of her political opinions and that her proposed social 

group was not legally cognizable. Castellon-Villalobos’s CAT claim also 

failed because she had not had any problems with police or other government

agents. She timely petitioned this court to review the decision.

II.

We review the decision of the BIA and reach the I.J.’s decision only if

it had an impact on the BIA. Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 

2013). Because the BIA expressly relied on the I.J.’s opinion, we may review 

both decisions. We review questions of law de novo, id., but “findings of fact 

are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). Whether a petitioner is eligible for asylum, withholding of removal, and relief under CAT are factual 

conclusions. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).

III.

Castellon-Villalobos’s first theory is that the I.J., and thus the BIA,

never had jurisdiction to consider her claims. The I.J.’s jurisdiction is a question of law and thus reviewed de novo. But Castellon-Villalobos’s theory is 

foreclosed by precedent.

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Title 8 U.S.C. § 1229 requires that aliens subject to removal proceedings be given a notice to appear that includes, among other things, “[t]he time 

and place at which the proceedings will be held.” Id. § 1229(a)(1)(G)(i). 

Castellon-Villalobos’s notice did not include that information—it was sent 

later in a separate notice of hearing. That defect, she says, deprived the I.J.

of jurisdiction.

Castellon-Villalobos asserts that her position is supported by Pereira, 

which held that a notice to appear that did not include the time of hearing was 

insufficient to trigger the “stop-time rule,” a feature of immigration law that 

is not at issue in this case. See Pereira, 138 S. Ct. at 2110. The Supreme Court 

later reaffirmed and strengthened that holding in Niz-Chavez v. Garland, 

141 S. Ct. 1474, 1480 (2021), concluding that a notice to appear must be “a 

single document containing the required information,” (quotation marks 

omitted). We confirmed that that reasoning applies not just to the stop-time 

context but also to aliens who were ordered removed in absentia despite not 

receiving a complete notice to appear. See Rodriguez v. Garland, 15 F.4th 351, 

355–56 (5th Cir. 2021), reh’g en banc denied, 31 F.4th 935 (5th Cir. 2022)

(mem.).

But we have expressly rejected the contention that failure to include 

all the required information in a notice to appear deprives the I.J. of jurisdiction. For purposes of jurisdiction, “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) (quotation omitted). That is because charging documents in proceedings before 

an I.J. are governed not by § 1229(a), the crucial provision in Niz-Chavez and 

Rodriguez, but by 8 C.F.R. § 1003.14, which does not require all the information to be in a single document. See Garcia v. Garland, 28 F.4th 644, 646–48 

(5th Cir. 2022). We are bound to accept the holdings of prior panels, and so 

we reject Castellon-Villalobos’s position that the I.J. lacked jurisdiction.

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IV.

As explained, the BIA denied Castellon-Villalobos’s application for 

asylum, withholding of removal, and protection under the CAT. Those first 

two decisions collapse into each other: Withholding of removal and asylum 

are governed by overlapping standards. Whereas asylum is a discretionary 

form of relief, withholding of removal is mandatory and, accordingly,requires 

a stronger showing from the applicant. See Vazquez-Guerra v. Garland, 

7 F.4th 265, 270–71 (5th Cir. 2021). Thus, “the failure to establish a wellfounded fear for asylum eligibility also forecloses eligibility for withholding of 

removal.” Id. at 271 (quotation omitted). Because Castellon-Villalobos fails 

to demonstrate eligibility for asylum, we do not separately analyze her request 

for withholding of removal.

The Attorney General has discretion to grant asylum to “refugee[s].” 

8 U.S.C. § 1158(b)(1)(A). To be a refugee, an alien must generally show that 

he or she is “unable or unwilling to return to” his or her home country 

“because of persecution or a well-founded fear of persecution on account of 

race, religion, nationality, membership in a particular social group, or political 

opinion.” 8 U.S.C. § 1101(a)(42)(A). Castellon-Villalobos avers that she 

meets that standard either because of her membership in a particular social 

group―namely, female Nicaraguan victims of domestic violence―or because 

of her political decision not to join the FSLN.

Castellon-Villalobos’s “particular social group” theory is unavailing. 

To begin with, “female Nicaraguan victims of domestic violence” is likely not 

a cognizable social group under § 1101(a)(42)(A). Under the BIA’s prevailing 

decisions, to which we defer in accordance with Chevron, U.S.A., Inc. v. 

Natural Resources DefenseCouncil, Inc., 467 U.S. 837 (1984), a particular social 

group must “(1) consist of persons who share a common immutable characteristic; (2) be defined with particularity; and (3) be socially visible or distinct 

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within the society in question,” Gonzales-Veliz v. Barr, 938 F.3d 219, 229 (5th 

Cir. 2019) (citing Matter of M-E-V-G-, 26 I.& N. Dec. 227, 237 (BIA 2014)). 

Castellon-Villalobos has presented no evidence that her proposed group is 

socially distinct within Nicaraguan society, and the experience of a particular 

type of harm is generally not sufficient to qualify as an immutable characteristic. See id. at 232 (rejecting the proposed group “Honduran women unable 

to leave their relationship” for similar reasons). And even if CastellonVillalobos’s group is cognizable, she has not demonstrated, or even clearly 

alleged, that she has suffered, or will suffer, persecution because of her membership in that group.

Neither has Castellon-Villalobos made a sufficient showing that she 

was persecuted, or reasonably fears persecution, for her political opinions. 

Castellon-Villalobos testified that she had refused to join the FSLN and that 

her mother had left the party, and that members of the party’s youth wing 

had thrown rocks at her house. She also presented evidence that the FSLN 

sometimes engages in violence against perceived enemies. But she did not 

testify that anyone in the FSLN had used or threatened violence against her. 

She claimed to have received kidnapping and death threats, but she attributed 

those threats to her perceived access to money and did not connect them to 

the FSLN. Castellon-Villalobos had the burden to show that her persecution 

occurred because of her political affiliation. See Tamara-Gomez v. Gonzales, 

447 F.3d 343, 349 (5th Cir. 2006). The BIA determined that CastellonVillalobos had not born that burden, and we cannot say that any reasonable 

factfinder would have concluded otherwise.

Castellon-Villalobos’s CAT claim also fails. Unlike asylum or withholding of removal, protection under the CAT does not require CastellonVillalobos to show that she will be persecuted for any particular reason. See 

id. at 350. But CAT eligibility does require that the applicant will more likely 

than not be tortured and that that torture will be inflicted by or with the 

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acquiescence of a public official. See Iruegas-Valdez v. Yates, 846 F.3d 806, 812 

(5th Cir. 2017).

Castellon-Villalobos does not claim to have had any adverse interactions with Nicaraguan officials. When she went to the police after receiving 

threats, they duly wrote a report. Though she wished they had assigned the 

case a higher priority, “the failure to apprehend the persons threatening the 

alien” is not enough state action to establish CAT eligibility. Tamara-Gomez, 

447 F.3d at 351. The FSLN is also closely connected to the Nicaraguan state, 

but Castellon-Villalobos does not claim to have been tortured or threatened 

with torture by that group either. Thus, we cannot reverse the BIA’s determination that Castellon-Villalobos did not show she likely would be tortured 

by government actors.

The BIA’s conclusions that Castellon-Villalobos was ineligible for asylum, withholding of relief, and protection under the CAT were all well 

grounded in the record. The petition for review is therefore DENIED.

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