IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60733

Summary Calendar

EDUARDO FLORENCIO ZAPETA-CANASTUJ, also known as Jorge MoralezMendoza,

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. A200 592 438

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Eduardo Florencio Zapeta-Canastuj (Zapeta), a native and citizen of 

Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA)

decision dismissing his appeal of the Immigration Judge’s (IJ) denial of his 

application for asylum, withholding of removal, and protection under the 

Convention Against Torture (CAT). Zapeta—who claims to be of indigenous 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2014

Lyle W. Cayce

Clerk

 

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No. 13-60733

Mayan descent, namely, the Quiché ethnic population—sought relief on the 

basis of mistreatment he allegedly suffered in Guatemala at the hands of gang 

members, as well as the family of a former girlfriend (the Cifuentes family).

With respect to the denial of asylum and withholding of removal, Zapeta 

challenges the determination that the complained-of acts did not rise to the 

level of past persecution. Relatedly, he argues that the BIA and the IJ erred 

in mischaracterizing an incident in which he was stabbed with a broken bottle 

and in finding that he could not identify his assailants. He also challenges the 

determination that he did not establish the requisite nexus between his 

persecution and a protected ground, namely, his Quiché race and/or nationality 

and his articulated particular social group consisting of young Quiché males in 

his rural community. Further, Zapeta contends that his past persecution 

establishes a presumption of his well-founded fear of persecution, which the 

Government did not rebut, and that the substantial evidence supports his 

well-founded fear of persecution if returned to Guatemala. Additionally, he 

contends that the BIA erred by finding that any error on the part of the IJ in 

applying an incorrect standard to his asylum claim was harmless. 

We review the decision of the BIA and will consider the underlying 

decision of the IJ only to the extent it influenced the BIA. Shaikh v. Holder, 

588 F.3d 861, 863 (5th Cir. 2009). Questions of law are reviewed de novo, and 

factual findings are reviewed for substantial evidence. Id. Under the 

substantial evidence standard, “reversal is improper unless we decide not only 

that the evidence supports a contrary conclusion, but [also] that the evidence 

compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (internal 

quotation marks and citation omitted). Among the findings that we review for 

substantial evidence are factual conclusions that an alien is not eligible for 

asylum, withholding of removal, or relief under the CAT. Id.

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An alien seeking asylum must demonstrate past persecution or a 

well-founded fear of persecution because of one of five protected grounds, 

including race, nationality, and membership in a particular social group. 

8 U.S.C. §§ 1158(b)(1)(A), (B)(i), and 1101(a)(42)(A). He must show that the 

protected ground “was or will be at least one central reason for persecuting” 

him. § 1158(b)(1)(B)(i) (emphasis added). In his petition, Zapeta contends that 

the evidence establishes that the “fundamental reason,” or at least a central 

reason, that the gangs targeted their victims, including Zapeta, was because of 

their Quiché ethnicity and that the gang members’ attempt to recruit him was

“incidental” to the mistreatments he suffered. He argues that, in reaching a 

contrary conclusion, the BIA and the IJ failed to fully consider his ethnicity.

The determination that Zapeta failed to show that any persecution by 

the gangs was or will be “on account of” his status as a Quiché is supported by 

the record and is substantially reasonable. See Shaikh v. Holder, 588 F.3d 861,

864 (5th Cir. 2009). Zapeta’s own testimony and his expert’s testimony

establish that the gangs acted tenaciously in their pursuit of persons whom 

they viewed as vulnerable or valuable to the gang, regardless of their 

indigenous or non-indigenous status, and that the gangs retaliated against 

anyone perceived to be in opposition to them. Further, contrary to Zapeta’s 

assertions, nothing in the documentary evidence indicates that there exists a 

unique problem between criminal gangs and any particular race, nationality, 

or group of indigenous persons. Accordingly, because he has not demonstrated 

that any protected ground was or will be a central reason for the alleged 

persecution, Zapeta has not demonstrated that the BIA and the IJ erred in 

denying asylum. 

Zapeta, who is represented by counsel, does not adequately brief the 

denial of his asylum claim as it pertains to alleged persecution by the Cifuentes 

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family. This issue therefore is deemed abandoned. See Soadjede v. Ashcroft, 

324 F.3d 830, 833 (5th Cir. 2003). Further, Zapeta has not shown that the BIA 

erred in determining that the IJ’s single reference to the “more likely than not” 

standard of proof in discussing the issue of a well-founded fear of persecution

was a harmless error. Cf. United States v. Mikhail, 115 F.3d 299, 305-07 (5th 

Cir. 1997).

Having failed to satisfy the requirements for asylum, Zapeta has also 

failed to satisfy the requirements for withholding of removal under the 

Immigration and Nationality Act. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th 

Cir. 2002).

Finally, Zapeta challenges the denial of his request for CAT protection. 

An alien seeking relief under the CAT must show that it is more likely than 

not that he would be tortured upon return to his home country. Zhang, 432 

F.3d at 344-45. Zapeta asserts that, if he is returned to Guatemala, he will be 

subject to torture by gang members and that Guatemalan authorities maintain 

willful blindness to the actions of gangs and are unable to control them. We 

conclude, however, that the evidence does not compel a finding that 

Guatemalan officials will acquiesce to or be willingly blind to any acts of 

torture. The fact that officials try, but are unsuccessful, in their efforts to 

combat criminal elements does not satisfy this standard. See Chen v. Gonzales, 

470 F.3d 1131, 1142-43 (5th Cir. 2006).

The petition for review is DENIED.

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