* 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that this opinion should not be published and is not precedent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

January 28, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60219

Summary Calendar

 

ESWIN ESTUARDO PINEDA-BARIENTOS,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A77 791 786

--------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Eswin Estuardo Pineda-Barientos petitions for review of the

opinion issued by the Board of Immigration Appeals (“BIA”) that

affirmed without opinion the decision of the Immigration Judge

(“IJ”). The IJ denied Pineda-Barientos’ applications for asylum,

withholding of deportation, and protection under the Convention

Against Torture (“CAT”).

Pineda-Barientos contends that he made a prima facie showing

of eligibility for asylum. He asserts that the IJ violated his
No. 03-60219

-2-

right to due process by excluding the testimony of his expert

witness and his father. He argues that the BIA improperly used

the summary affirmance procedure and did not independently state

a correct ground for affirmance or determine that the IJ’s errors

were “harmless or nonmaterial.”

We review the IJ’s decision in this case. Mikhael v. INS,

115 F.3d 299, 302 (5th Cir. 1997). We review legal conclusions

de novo and findings for substantial evidence. Lopez-Gomez v.

Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). 

Pineda-Barientos did not establish a well-founded fear of

persecution “on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

Adebisi v. INS, 952 F.2d 910, 912 (5th Cir. 1992). His fear of

persecution arose from a personal dispute and did not provide

sufficient grounds for a grant of asylum. See Adebisi, 952 F.2d

at 913. Pineda-Barientos did not make the showing required to

establish eligibility for asylum, and thus, he has not met the 

more stringent standard necessary to establish eligibility for

withholding of deportation. See id. Because Pineda-Barientos

did not establish that he would likely be tortured if returned to

Guatemala, he has not shown eligibility for relief under the CAT. 

See Bah v. Ashcroft, 341 F.3d 348, 351-52 (5th Cir. 2003). 

We review Pineda-Barientos’ due process claims de novo. 

Alwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997). PinedaBarientos has not shown that the exclusion of testimony from his
No. 03-60219

-3-

expert and his father resulted in substantial prejudice. See id.

He has not shown why the testimony was necessary, nor has he

explained how exclusion of the testimony caused him harm. 

The BIA’s use of the summary affirmance procedure did not

deprive this court of a basis for judicial review and did not

violate due process. Soadjede v. Ashcroft, 324 F.3d 830, 832-33

(5th Cir. 2003). The inclusion of further explanation or

reasoning by a Board Member in a summary affirmance is explicitly

prohibited by regulation. 8 C.F.R. § 1003.1(a)(7)(ii) & (iii)

(2003). 

Pineda-Barientos’ petition for review is DENIED.