IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60636

Summary Calendar

ELVIRA CAMAC PACHECO, also known as Elvira Camac; also known as Eluira

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 and citizen of Mexico, seeks a petition for

review of the order of the Board of Immigration Appeals (BIA) affirming the

immigration judge’s (IJ) denial of her application for withholding of removal

under the Convention Against Torture (CAT). Pacheco argues that (1) the BIA

and the IJ applied two incorrect legal standards in determining her eligibility

for relief under the CAT; (2) her merits hearing was fundamentally unfair,

United States Court of Appeals

Fifth Circuit

F I L E D

May 23, 2013

Lyle W. Cayce

Clerk

* 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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violating her due process rights; and (3) the IJ erred in pretermitting her

application for cancellation of removal because she 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 eligibility for withholding

of removal is a factual determination reviewed for substantial evidence. See

Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). In order to obtain relief

under the CAT, an alien has the burden of demonstrating “that it is more likely

than not that he or she 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 “any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . by or at the instigation of 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 IJ or the BIA used an

inappropriate standard of review when deciding whether she was more likely

than not to be tortured upon returning to Mexico. Her wholly conclusional

assertions are insufficient to state a claim and amount to a waiver of the claim

due to inadequate briefing. See Garrido-Morato v. Gonzales, 485 F.3d 319, 322

n.1 (5th Cir. 2007); Soadjede v. Ashcroft, 324 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 to determine whether officials acquiesced in torture. See

Hakim v. Holder, 628 F.3d 151, 155-56 (5th Cir. 2010) (noting that a

Government’s willful blindness to the torture would satisfy the acquiescence

requirement). 

Pacheco’s assertion that her merits hearing violated her due process rights

is also without merit. She argues that she should have been given the

opportunity to get a reply from her Freedom of Information Act (FOIA) request

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to determine whether she was eligible for adjustment of status. However,

because Pacheco did not request a continuance or fairly present the issue of her

FOIA request during the merits hearing, she has arguably waived the claim. See

Newby v. Enron Corp., 394 F.3d 296, 309 (5th Cir. 2004). In any event, the BIA

adequately addressed Pacheco’s claim, noting that she had not raised the FOIA

issue before the IJ or requested a continuance.

Furthermore, the IJ did not err by pretermitting Pacheco’s application for

cancellation of removal. Contrary to her conclusional assertion otherwise,

pursuant to 8 U.S.C. § 1101(f)(7), a finding of good moral character is precluded

if, “during the period for which good moral character is required to be

established,” the person was “confined, as a result of conviction, to a penal

institution for an aggregate period of one hundred and eighty days or more.” 

Pacheco admitted to serving over four years in prison; thus, she was statutorily

ineligible for cancellation of removal because she could not demonstrate the

requisite good moral character, regardless of whether she was convicted of a

crime involving moral turpitude. See Eyoum v. INS, 125 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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