### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 60324 Summary Calendar

SONIA GUADALUPE SERRANO

- AMAYA; GRISELDA EMERLINDA SERRANO

- HERNANDEZ , Petitioner s

v.
WILLIAM P. BARR , U.S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A208 377 869 BIA No. A208 377 870

Before REAVLEY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Sonia Guadalupe Serrano

- Amaya and Griselda Emerlinda Serrano

Hernandez (the Petitioners) , seek review of the decision of the Board of Immigration Appeals (BIA) denying their motion to reopen removal proceedings

. They claim t hat (1) they received ineffective assistance of counsel in connection with their removal proceedings that amounted to a violation of

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 6, 2019 Lyle W. Cayce Clerk Case: 18-60324 Document: 00514985749 Page: 1 Date Filed: 06/06/2019N o. 18

- 60324

2 due process, and (2) they are entitled to relief under the Convention Against Torture (CAT). Motions to reopen are disfavo red. Lara v. Trominski , 216 F.3d 487, 496 (5th Cir. 2000). We review the denial of a motion to reopen under a “ highly deferential abuse

- of

- discretion standard. ” Zhao v. Gonzales , 404 F.3d 295, 303 (5th Cir. 2005). Ineffective assistance of counsel claim The Petitioners assert that their counsel in removal proceedings performed deficiently because he failed to assert that they belonged to the particular social groups of “informants” and “immediate or nuclear family members” of Serrano

- Amaya’s husband, wh o was killed when he refused to join a gang. They contend that they were persecuted in the past, and that they fear persecution and are likely to be persecuted in the future, based on their membership in these particular social groups . They argue that, h ad counsel provided constitutionally adequate representation, they would have been granted asylum or withholding of removal. To prevail on such a claim, the Petitioners must d emonstrate substantial prejudice resulting from co unsel’s deficient performance. See Gutierrez

Morales v. Homan , 461 F.3d 605, 609 (5th Cir. 2006). Proving substantial prejudice requires a prima facie showing that, absent counsel’s deficient performance, the applicant would have been entitled to the relief sought. Miranda

- Lores v. I .N.S. , 17 F.3d 84, 85 (5th Cir. 1994). Here, the record reflects that Serrano

- Amaya reported the murder of her husband, and several gang members were subsequently imprisoned for the killing. As the BIA determined, threats were made against Serrano

- Amaya based on the desire o f one or more gang members to avoid , or extract revenge for , suffering the consequences of their criminal behavior. Thus, a ssuming Case: 18-60324 Document: 00514985749 Page: 2 Date Filed: 06/06/2019N o. 18

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3 arguendo that “informants” and “immediate nuclear family members” of Serrano

- Amaya’s husband c onstitute particular social group s , the Petitioners cannot show substantial prejudice from counsel’s failure to propose such

group s because aliens who are targeted for personal reasons , including

revenge , are not entitled to asylum or withholding of removal. See T huri

v. Ashcroft , 380 F.3d 788, 792

- 93 (5th Cir. 2004)

. Claim Under the CAT In support of their CAT claim, the Petitioners assert that gangs in El Salvador receive the cooperation and assistance of public officials. They note that Franklin, the gang leade r who participated in the murder of Serrano

Amaya’s husband, was released from prison after being convicted of the killing and that he is free to pursue them. To obtain relief under the CAT, “an applicant must show that it is more likely than not that he w ould be tortured if returned to his home country.” Zhang v. Gonzales , 432 F.3d 339, 344

- 45 (5th Cir. 2005) (internal quotation marks and citation omitted). The torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). As the discussion above shows, gang members who killed Serrano

Amaya’s husband were prosecuted and imprisoned by the state. Such evidence supports the denial of a claim for relief under the CAT. See Ramirez

- Mejia

v. Lynch , 794 F.3d 485, 494 (5th Cir. 2015)

. In view of the foregoing, the BIA’s denial of the motion to reopen was

“ not capricious, racially invidious, utterly without foundation in the evidence,

or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach. ” Zhao , 404 F.3d at 304 (internal quotat ion marks and citation omitted). Accordingly, the petition for review is DENIED

. Case: 18-60324 Document: 00514985749 Page: 3 Date Filed: 06/06/2019