America Gonzalez-Gomez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 2019
• Docket: 17-72903
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AMERICA GONZALEZ-GOMEZ, No. 17-72903

Petitioner, Agency No. A208-935-834

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 4, 2019** Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District Judge.

America Gonzalez-Gomez, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

* 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 Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. from the Immigration Judge’s (“IJ”) decision denying her application for

withholding of removal.1 We have jurisdiction to review the exhausted claims

under 8 U.S.C. § 1252, and we deny Gonzalez-Gomez’s petition for review of

those claims. We lack jurisdiction to review the unexhausted claim of collateral

estoppel, and we dismiss that claim.

1. Substantial evidence supports the BIA’s determination that Gonzalez-

Gomez failed to demonstrate an objectively reasonable fear of future persecution

on account of her membership in the particular social group “lesbians in

Guatemala with masculine appearance and sexual identities.”2 Even assuming that

Gonzalez-Gomez’s mother and uncle harmed her when she was a child because of

her sexual identity, neither lives in Guatemala today. Gonzalez-Gomez also failed

to show “a systematic ‘pattern or practice’ of persecution against the group to

which [she] belongs” in Guatemala. Wakkary v. Holder, 558 F.3d 1049, 1060 (9th

Cir. 2009) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)(A)). The record evidence shows

that the Guatemalan government has made significant progress in recent years to

1 The BIA also dismissed Gonzalez-Gomez’s appeal from the IJ’s denial of her application for asylum and protection under the Convention Against Torture. Gonzalez-Gomez does not challenge those rulings in her petition for review. 2 Gonzalez-Gomez suggests that the agency erred by making this determination without considering the evidence she submitted with her motion to reopen. Because her briefs do not raise any challenge to the agency’s denial of her motion to reopen, this argument has been waived. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013) (finding waiver on similar facts).

2 protect LGBTQ rights. See id. at 1061 (noting that a “pattern or practice may . . .

be the work of private actors, so long as the persecution is sufficiently widespread

and the government is unable or unwilling to control those actors”).

2. Substantial evidence also supports the BIA’s determination that

Gonzalez-Gomez failed to demonstrate a nexus between the harm she experienced

and her membership in the particular social group “the Gonzalez-Gomez family.”

See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be

free from . . . random violence by gang members bears no nexus to a protected

ground.”).

3. Gonzalez-Gomez argues that the IJ erred by disregarding findings made

by a different immigration judge in removal proceedings involving her mother and

sister, but she failed to exhaust this argument before the BIA. We therefore lack

jurisdiction to consider it. 8 U.S.C. § 1252(d); Socop-Gonzalez v. I.N.S., 272 F.3d

1176, 1183 (9th Cir. 2001) (“Failure to raise an issue in an appeal to the BIA

constitutes a failure to exhaust remedies with respect to that question and deprives

this court of jurisdiction to hear the matter.” (quoting Vargas v. U.S. Dep’t of

Immigration & Naturalization, 831 F.2d 906, 907–08 (9th Cir. 1987))).

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.