### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60636 Summary Calendar

E LVIRA CAMAC PACHECO, also known as Elvira Camac; al s o kn o w n a s E luir a Camac,
Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A089 278 780

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Elvira Camac Pacheco, a native a nd citizen of Mexico, seeks a petition for review of t h e order of the Board o f Immigration Appeals (BIA) affirming the immigration judge’s (IJ) denial of h er application for withholdin g of removal under the Convention Against Torture (CAT). Pacheco argues that (1) the BIA

a n d the IJ applied two incorrect legal standards in determining her eligibili t y for relief u nder the CAT; ( 2) her meri t s hearing was f undamentally unfair, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May23, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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violating her due process rights; an d ( 3) the I J erred in pretermitting her application for cancellation of removal because s he had not been convicted of a crime involving moral turpitude. Because the BIA agreed with the IJ’s findings and conclusions, we review the decisions of both the IJ and the BIA. See Efe v. Ashcroft , 293 F .3d 899, 903 (5th Cir. 2002). Whether an alien has demonstrated e ligibility for withholding of removal is a f

a c t u al d etermination reviewed for substantial evidence. See Chen v. Gonzales , 470 F.3d 1131, 1134 (5th Cir. 2006). In o rder to obtain relief under the CAT, an alien has the burden of demonstrating “that it is more likely than not that he o r s he would be tortured if removed to the proposed country of removal.” Id. at 1139 (citing 8 C.F.R. § 208.16(c)(2)). The CAT defines torture

as “ a ny act by which severe pain or suffering, wh e ther physical o r mental, is intention a l l y i n f

l i c t e d on a person . . . by or at the instigation o f or with the consent or acquiescence of a public official or other person acting in an official capacity.” § 208.18(a)(1). Pacheco provides no evidence that either the I J o r the BIA used an inappropriate standard of review when deciding w h e t h e r she was more likely than not t o be tort u r e d u p on returning t o Mexico. Her wholly conclusional assertions are insufficient to state a claim and amount to a waiver of the claim due to i n adequate briefing. See Garrido-Morato v . Gonzales , 485 F.3d 319, 322 n.1 (5th Cir. 2007); Soadjede v. Ashc rof t , 3 2 4 F.3d 830, 833 ( 5th Cir. 2003). Moreover, she fails to provide any evidence that either the IJ or the BIA applied

an improper standard t o determine whether o fficials acquiesced in torture. See Hakim v. Holder , 6 28 F.3d 151, 155-56 (5th Cir. 2010) (noting that a Government’s willful blindness to the tortur e would satisfy the acquiescence requirement). Pacheco’s assertion that her merits hearing violated her du e p ro c e s s ri ghts is also without merit. She ar g u e s that she should have b een given the opportunity t o get a reply from her Freedom of I nformation Act (FOIA) request
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to determine whether she was eligible for adjustment of status. H o w e v er, because Pacheco did not r equest a continuance or fairly present the issue of her FOIA r e quest during the merits hearing, she has arguably waived the claim. See Newby v. Enron C

orp. , 394 F.3d 296, 309 (5th Cir. 2004). In any event, the BIA adequately addressed Pacheco’s claim, noting that she h ad not raised the FOIA issue before the IJ or requested a continuance. Furthermore, the I J did not err by pretermitting P acheco’s application for cancellation o f removal. C ontrary to her c o nclusional assertion otherwise, pursuant to 8 U.S.C. § 1 101(f)(7), a finding of good moral character is precluded if, “during the period for which good m oral character is required t o b e established,” the p e r s o n w as “confined, as a result of conviction, to a penal institution for a n a ggregate period of o ne h undred and e ighty days or more.” Pacheco admitted to serving over four years in prison; thus, she was statutorily ineligible for cancellation of r e m o v a l because she could not demonstrate the requisite good moral character, regardless of whether she was c onvicted o f a crime involving m o r a l t u r p itude. See Eyoum v. INS , 1 25 F.3d 889, 891 & n.2 (5th Cir. 1997) (voluntary departure); 8 U.S.C. § 1229b(b)(1)(B). Accordingly, Pacheco’s petition for review is DENIED.

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