Calmo Ramirez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2024
• Docket: 23-148
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUISA CALMO RAMIREZ, No. 23-148 Agency No. Petitioner, A216-572-926 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 29, 2024** Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Luisa Calmo Ramirez, a native and citizen of Guatemala, seeks review of the

Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s

(IJ) denial of asylum, withholding of removal, and relief under the Convention

* 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). Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we

deny the petition.

We review the agency’s legal conclusions de novo and its factual findings for

substantial evidence. Perez-Portillo v. Garland, 56 F.4th 788, 792 (9th Cir. 2022).

Under the substantial evidence standard, “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B).

1. Asylum and withholding of removal. By failing to raise the issue in her

opening brief, Calmo Ramirez has waived any challenge to the agency’s

determination that she failed to establish that the Guatemalan government is

unwilling or unable to control the gang members who harmed her. See Nguyen v.

Barr, 983 F.3d 1099, 1102 (9th Cir. 2020) (issues not raised in the opening brief are

waived). Her failure to do so is dispositive of her applications for asylum and

withholding of removal. See Rodriguez Tornes v. Garland, 993 F.3d 743, 750–51

(9th Cir. 2021); Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013).1

In any event, substantial evidence supports the agency’s denial of Calmo

Ramirez’s asylum and withholding of removal claims because she failed to establish

the requisite nexus between her past or feared harm and a statutorily protected

1 Petitioner has also similarly waived any challenge to the BIA’s denial of humanitarian asylum, by failing to raise the issue in her briefing.

2 23-148 ground. The record supports the agency’s conclusion that the gang members who

harmed her were neither motivated by her race, as an indigenous Guatemalan, nor

her membership in her proposed particular social group (PSG), “indigenous Mam

speaking Mayans,” but rather by criminal objectives—i.e., robbery and the desire to

recruit her partner to join their ranks.

The IJ concluded that although Calmo Ramirez was unfortunately ridiculed

for her indigenous background and lack of fluency in Spanish, this derision alone

does not establish that the harm she suffered was on account of her race or ethnicity,

or status as an indigenous Mam speaking Mayan. See Parussimova v. Mukasey, 555

F.3d 734, 742 (9th Cir. 2009). Substantial evidence supports the agency’s

conclusion that, in each isolated incident, Calmo Ramirez was merely a victim of

generalized crime. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An

alien’s desire to be free from harassment by criminals motivated by theft or random

violence by gang members bears no nexus to a protected ground.”).

2. CAT. Although she makes a passing reference to CAT protection in her

jurisdictional statement, issue statement, and statement of the case, Calmo Ramirez

has waived any challenge to the BIA’s denial of CAT relief by failing to

meaningfully raise the issue in her opening brief. See Velasquez-Gaspar v. Barr,

976 F.3d 1062, 1065 (9th Cir. 2020) (holding that the petitioner “waived any

argument as to her CAT claim by failing to ‘specifically and distinctly’ discuss the

3 23-148 matter in her opening brief” (quoting Castro-Perez v. Gonzales, 409 F.3d 1069, 1072

(9th Cir. 2005))). We thus deny the petition on the claim for CAT relief.

3. Issues not properly before the court. Calmo Ramirez raises numerous other

issues that are not properly before this court. Although she contends that the record

evidences harm rising to the level of past persecution, the BIA did not reach that

issue. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review

confined to the grounds relied on by the BIA). She also argues that her proposed

PSG is sufficiently particular and socially distinct, but the BIA implicitly assumed

that her PSG is cognizable. Finally, invoking the “principle of non-refoulement,”

Calmo Ramirez maintains that the IJ’s framework for evaluating PSG claims is

violative of “international norms, and the prior pronouncements of the Supreme

Court,” and that BIA precedent conflicts with certain “international interpretations.”

Because Calmo Ramirez failed to exhaust these arguments before the BIA and the

government timely raised § 1252(d)(1), we cannot consider them for the first time

on review. See Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023) (holding that,

although 8 U.S.C. § 1252(d)(1)’s exhaustion requirement is not jurisdictional, it is

still subject to the rules regarding waiver and forfeiture); Umana-Escobar v.

Garland, 69 F.4th 544, 550 (9th Cir. 2023).

4 23-148 PETITION DENIED.2

2 Calmo Ramirez’s motion to stay removal, Dkt. 4, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 23-148