Amaya-Jimenez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2023
• Docket: 22-534
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GLENDA V. AMAYA-JIMENEZ, et No. 22-534 al., Agency Nos. A209-980-614/615 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 7, 2023** San Francisco, California

Before: MILLER and KOH, Circuit Judges, and MOLLOY, District Judge.***

Lead petitioner Glenda Vanessa Amaya-Jimenez (“Amaya-Jimenez”)1

and her minor child, as rider-derivative, appeal the Board of Immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 “Amaya-Jimenez” refers to both the lead petitioner and her minor child, as rider-derivative, 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child . . . of an alien Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of

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

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. “Where, as here, the BIA agrees with the IJ decision and also adds its

own reasoning, we review the decision of the BIA and those parts of the IJ’s

decision upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–

28 (9th Cir. 2019). “We review the denial of asylum, withholding of removal,

and CAT claims for substantial evidence.” Id. at 1028. “Under this standard,

we must uphold the agency determination unless the evidence compels a

contrary conclusion.” Id. We deny the petition.

1. Substantial evidence supports the agency’s denial of asylum. No

nexus exists between Amaya-Jimenez’s purported particular social group and

her past or future fear of persecution. See Aden v. Wilkinson, 989 F.3d 1073,

1084 (9th Cir. 2021) (“To meet this nexus requirement, an applicant must show

that the protected ground was at least one central reason the applicant was

persecuted.”) (internal quotation marks omitted). Amaya-Jimenez herself

testified that she was afraid of the gang members because “they think [she]

reported them to the police” and “because they want[ed] [her] to pay them

extortion fees.” That testimony supported the agency’s finding that the harm

who is granted asylum . . . may . . . be granted the same status as the alien if accompanying, or following to join, such alien.”), even though the rider- derivate is not eligible for withholding of removal nor CAT protection, see Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).

2 22-534 she feared is not on account of any protected ground but is based on being the

victim of a crime and a fear of generalized criminality. See Zetino v. Holder,

622 F.3d 1007, 1016 (9th Cir. 2010).

2. Substantial evidence also supports the agency’s denial of

withholding of removal. Although the nexus standard is more lenient in the

withholding of removal context, see Barajas-Romero v. Lynch, 846 F.3d 351,

360 (9th Cir. 2017) (holding that, for withholding, an applicant must only prove

that protected ground was or will be “a reason” for persecution), Amaya-

Jimenez fails to demonstrate any nexus.

3. Amaya-Jimenez has neither preserved nor exhausted her CAT

claims. Amaya-Jimenez raised a CAT protection argument with the IJ but did

not do so with the BIA or this Court. Because an argument not substantially

raised on appeal is considered waived, Aguilar-Ramos v. Holder, 594 F.3d 701,

703 n.1 (9th Cir. 2010), Amaya-Jimenez has not preserved the issue here.

Moreover, because Amaya-Jimenez did not raise the issue before the BIA, it is

not exhausted. See 8 U.S.C. § 1252(d)(1).

PETITION DENIED.

3 22-534