IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60510

JOSE NELSON CRUZ; NELSON STEVEN CRUZ-VILLEGA, 

 Petitioners,

v.

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

 Respondent.

Petitions for Review of an Order

of the Board of Immigration Appeals

Before KING, SMITH, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Jose Cruz, a former Salvadoran police officer, fled his home country and 

illegally entered the United States with his son after receiving threats from 

the Revolutionaries—a faction of the Barrio 18 gang. Conceding his 

removability, Cruz requested asylum, withholding of deportation, and 

protection under the United Nations Convention Against Torture.

The Immigration Judge denied all relief, as did the Board of Immigration 

Appeals, which accepted the Immigration Judge’s key findings that (1) Cruz 

did not suffer past persecution in El Salvador, (2) Cruz failed to satisfy his 

burden of establishing a well-founded fear of future persecution, and (3) 

because Cruz failed to make a prima facie showing on his asylum claim, he 

necessarily failed to make the more stringent showing for withholding of 

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2019

Lyle W. Cayce

Clerk

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removal. The Board denied relief across the board, and Cruz brought this 

petition for review.

Under the highly deferential standards of review that guide our analysis, 

we conclude that the Board committed no reversible error. We DENY Cruz’s 

petition for review.

I

In El Salvador, Cruz patrolled his hometown of Zacatecoluca. The 

Revolutionaries didn’t like that and threatened Cruz. The first threat came

when Cruz was sitting in a car with his son. Gang members approached Cruz

and told him “they knew him, knew where he lived, and wanted him out of the 

territory.” One member raised his shirt to show his gang tattoos and a gun in 

his waistband. They told Cruz that they weren’t going to kill him then and 

there because his son was with him, and there were too many witnesses. Cruz 

reported the incident to police officials the next day and then asked for (and 

received) a three-year leave of absence.

The next threat, not long after, was a threatening note left on Cruz’s 

door: “We don’t want to see you in our neighborhood again, or you are going to 

regret it.” Later that day, the gang’s leader called Cruz and told him that he’d

been given the green light to murder Cruz and his son unless Cruz left town. 

So Cruz fled the country with his son later that month. His mother continues 

to live in their Salvadoran home, though, and has not received any additional 

threats or harassment.

Cruz entered the United States illegally and was apprehended. 

Admitting he was removable, Cruz applied for asylum, withholding of removal, 

and protection under the Convention Against Torture.

The Immigration Judge denied all relief. Although the IJ sympathized 

with Cruz and his family, he nonetheless held that Cruz “failed to meet his 

burden of proof to establish he was persecuted, or suffered past persecution, or 

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has a well-founded fear of future persecution on account of a protected ground

if he is returned to El Salvador.” As the IJ saw it, the threats Cruz received 

“did not arise to the level that . . . would constitute persecution.”1 Finally, the 

IJ denied Cruz’s Convention petition because Cruz “provided insufficient 

evidence” of torture, past or future, at the hands of Salvadoran officials acting 

in their official capacity.

Cruz appealed the IJ’s decision to the Board, which found no error: “The 

record [did] not demonstrate that [Cruz was] subjected to extreme conduct 

constituting past persecution.” Nor did the Board buy Cruz’s well-foundedfear-of-future-persecution claim. The Board believed he could’ve reasonably 

avoided persecution by relocating to another part of El Salvador2—something 

Cruz admitted that he never attempted to do. And the Board emphasized that 

the gang had never threatened any of Cruz’s family members in El Salvador.

Since Cruz failed to make a prima facie asylum showing, he necessarily failed 

to make the more rigorous showing necessary to justify withholding of 

removal.3

Concerning Cruz’s petition for protection under the Convention, the 

Board found that Cruz did not show that it is more likely than not that a

“person acting in a public capacity” would “inflict,” “acquiesce,” or “give consent

to . . . torture.”4 As there was no state action, the Board concluded that the IJ 

properly denied Cruz’s request for Convention protection.

 

1 “To the extent that [Cruz] fears gang activity,” the IJ remarked, “that is merely a 

fear that [he] may be the victim of crime, not persecuted on account of a protected ground.”

2 See Eduard v. Ashcroft, 379 F.3d 182, 194 (5th Cir. 2004) (“An applicant does not 

have a well-founded fear of persecution if the applicant could avoid persecution by relocating 

to another part of the applicant’s country of nationality.” (quoting 8 C.F.R. § 208.13(b)(2)(ii))).

3 See Adebisi v. INS, 952 F.2d 910, 914 (5th Cir. 1992).

4 See Tamara-Gomez, 447 F.3d at 351 (“The Convention Against Torture requires a 

‘public official’ or ‘person acting in a public capacity’ to ‘inflict,’ ‘acquiesce,’ or ‘give consent’ to 

the torture.”).

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Cruz filed a timely motion seeking to reopen proceedings and to 

reconsider the Board’s decision. The Board denied the motion. Cruz then 

appealed both the Board’s decision affirming the IJ and the denial of his 

motions to reconsider and to reopen proceedings. We consolidated the appeals.

Cruz does not appeal the Board’s denial of relief under the Convention Against 

Torture, so those arguments are waived.5

II

Our review is limited and deferential. Motions to reopen removal 

proceedings are disfavored,6 and we review denials of such motions “under a

highly deferential abuse-of-discretion standard.”7 We review the Board’s

factual findings under the substantial-evidence test, reversing only when the 

record is “so compelling that no reasonable fact finder could fail to find the 

petitioner statutorily eligible for relief.”8

On appeal, Cruz asserts that he suffered past persecution and has a wellfounded fear of future persecution. He also argues that the Board abused its 

discretion in denying his motion to reconsider. Under the governing standards 

of review, we cannot say the Board committed reversible error.

A

Let’s begin with the motion to reconsider. It is Cruz’s burden to identify

an error of law or an argument that slipped through the cracks. Cruz contends

that the Board applied the wrong standard of review to the IJ’s finding (that 

Cruz did not suffer past persecution), a legal error if he can prove it.

 

5 “It is a well worn principle that the failure to raise an issue on appeal constitutes 

waiver of that argument.” United States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (citing 

United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000)).

6 Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th 2006).

7 Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th 2009); see 8 C.F.R. § 1003.2(a) (“The 

decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board 

subject to the restrictions of this section.”).

8 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam).

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Unfortunately, he fails to cite pertinent authority to support this proposition. 

As explained below, the Board did not misstep.

Under 8 U.S.C. § 1229a(c)(6)(C), a motion to reconsider must “specify the 

errors of law or fact in the previous order and shall be supported by pertinent 

authority.”9 And federal law provides just one shot: “A party may only file one 

motion to reconsider any given decision and may not seek reconsideration of a 

decision denying a previous motion to reconsider.”10 Finally, the Board 

possesses broad leeway: “The decision to grant or deny a motion to reopen or 

reconsider is within the discretion of the Board . . . .”11 This wide discretion 

persists “even if the party moving has made out a prima facie case for relief.”12

Congress has granted the Board abundant leeway, and we review the 

Board’s denial of a motion to reopen “under a highly deferential abuse of 

discretion standard.”13 As noted above, we must affirm the Board’s refusal to 

reopen, even if we believe the refusal was error, “so long as it is 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.”14 As for the Board’s legal conclusions, we review those de novo.15

Cruz asserts that the Board applied the wrong standard of review to the 

IJ’s lack-of-past-persecution finding—reviewing the decision for clear error, 

rather than de novo. Cruz says that the Board compounded this error when it 

denied his motion to reconsider. He maintains that “[w]hile an IJ’s factual 

 

9 It must also “state the reasons for the motion by specifying the errors of fact or law 

in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. 

§ 1003.2(b)(1).

10 8 C.F.R. § 1003.2(b)(2).

11 Id. § 1003.2(a).

12 Id. 13 Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); see, e.g., Lowe v. Sessions, 872 

F.3d 713, 715 & n.1 (5th Cir. 2017) (collecting cases).

14 Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304).

15 Id.

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determinations can be reviewed only for clear error, an IJ’s decisions based 

upon law or judgment may be reviewed de novo.”16 He frames the persecution 

issue as a legal (not factual) issue that deserves fresh-eyed de novo review.

The government replies that Cruz can’t cite any legal authority for this 

proposition. And since he provided the Board with no legal basis to grant his 

motion to reconsider, the Board didn’t abuse its discretion when it denied the 

motion.

We agree with the Government on this point. The Board did not abuse 

its discretion in denying Cruz’s motion to reconsider because supporting

authority was wholly absent from Cruz’s motion17—other than the regulatory 

standard of review for questions of law.18

B

The Board held that the IJ could reasonably have found that Cruz didn’t 

suffer past persecution and didn’t have a well-founded fear of future 

persecution. Even though Cruz presented plenty of evidence to demonstrate 

past and future persecution, we can’t say that the evidence compels a finding

of persecution; accordingly, the Board did not abuse its discretion.19

The Attorney General has discretion to grant asylum to “refugees”20—

that is, aliens who are “unable or unwilling to return to their 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 

 

16 See 8 C.F.R. § 1003.1(d)(3)(i)–(ii).

17 “The motion does not identify any error of law . . . or identify any argument 

advanced that was overlooked by the Board.”

18 8 C.F.R. § 1003.1(d)(3)(ii).

19 Long v. Gonzales, 420 F.3d 516, 519 (5th Cir. 2005).

20 8 U.S.C. § 1158(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

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opinion.”21 The burden of proof is on the asylum seeker to demonstrate that he 

meets the statutory “refugee” definition.22 Cruz must thus demonstrate three 

things: (1) He was or likely will be persecuted in El Salvador (2) “on account 

of” (3) his “race, religion, nationality, membership in a particular social group, 

or political opinion.”23

Although Cruz submitted evidence about the threats he received, why he 

believed these threats were credible, and how prevalent gang activity is in El 

Salvador, our review is limited, focusing only on whether there is substantial

evidence to support the Board’s finding.24 In other words, we aren’t weighing 

and evaluating record evidence, deciding which pieces persuade us and which 

don’t; we are only asking whether the Board could look at the evidence and 

plausibly reach the finding it made.

We think substantial evidence supports the Board’s no-past-persecution 

finding. Although Cruz testified that the gang’s threats were against his entire 

family, he admitted that his family members who still live in El Salvador have 

experienced no problems with the Revolutionaries. His mother still lives in the 

home where the threatening note was posted, and she has encountered no 

difficulties with the gang.

For the same reasons, we cannot say the Board abused its discretion in 

finding a lack of well-founded fear of future persecution—the rest of the Cruz 

family has been safe. But there’s a small, additional step to our futurepersecution inquiry. When the applicant has not demonstrated past 

persecution, he has the burden to demonstrate that relocating within his home 

 

21 8 U.S.C. § 1101(a)(42); see also Dayo v. Holder, 687 F.3d 653, 657 (5th Cir. 2012) 

(“To qualify for asylum, an applicant must show he is a refugee by proving he suffered past 

persecution or has a well-founded fear of future persecution.”).

22 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a).

23 8 U.S.C. § 1101(a)(42).

24 See Long, 420 F.3d at 519.

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country would be unreasonable.25 Cruz admitted that he never attempted to 

relocate. Combined with his mother’s continued safety, this constitutes 

substantial evidence to back-up the Board’s finding that there is no wellfounded fear of future persecution.

In sum, we cannot say that the Board went so far afield “that no 

reasonable factfinder could reach a contrary conclusion.”26 So, because the 

Board did not abuse its discretion in finding no persecution, Cruz’s asylum 

claim fails.27

* * *

For these reasons, we DENY Cruz’s petition for review.

 

25 8 CFR 1208.13(b)(3)(i); Eduard, 379 F.3d at 194 (“Because there was no showing of 

past persecution, Petitioners had the burden to establish that their relocation was 

unreasonable.”).

26 Zhao, 404 F.3d at 306 (citing Elias-Zacarias, 502 U.S. at 481 n.1).

27 While we conclude that substantial evidence supports the BIA’s no-persecution 

determination, we also note, but need not resolve, another issue: whether Cruz’s status as a 

former police officer falls within “particular social group.” 8 U.S.C. § 1101(a)(42). The Board, 

in its Matter of Fuentes decision, distinguished between current and former police officers, 

recognizing that “status as a former member of the national police . . . is in fact an immutable 

characteristic” that could count as a particular social group under the statute. 19 I. & N. 658, 

661–62 (1988) (emphasis added). It also explained that current police officers could count too, 

if the persecution they face doesn’t fall within the type and degree of harm police officers 

typically expect to encounter as part of the job. Our circuit has not squarely addressed this 

current-versus-former-officer distinction. See Tamara-Gomez, 447 F.3d at 349 (failing to 

address the distinction); see also Gharti-Magar v. Holder, 551 F. App’x 197, 198–99 (5th Cir. 

2014) (per curiam) (denying asylum to a Nepalese police officer and not discussing the 

distinction between current and former officers). The parties in today’s case did not provide 

detailed briefing on this issue, nor was it discussed by the BIA. As our decision pivots on 

“substantial evidence,” we need not reach the current-versus-former-officer issue.

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