Chavez-Licona v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2024
• Docket: 23-4056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEPHANY MARIBY CHAVEZ- No. 23-4056 LICONA; SAILY MARIBY LOBO- Agency Nos. CHAVEZ, A218-146-809 A218-146-810 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2024** San Francisco, California

Before: BRESS and FORREST, Circuit Judges, and OHTA, District Judge.***

Stephany Mariby Chavez-Licona and her daughter, Saily Mariby Lobo-

* 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 Jinsook Ohta, United States District Judge for the Southern District of California, sitting by designation. Chavez, natives and citizens of Honduras (collectively, Chavez-Licona), petition for

review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of

an Immigration Judge’s (IJ) order denying her applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). Saily is a

derivative applicant on Chavez-Licona’s asylum application. We review the denial

of asylum, withholding of removal, and CAT protection for substantial evidence.

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). “Under this

standard, we must uphold the agency determination unless the evidence compels a

contrary conclusion.” Id. We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

1. To be eligible for asylum, Chavez-Licona has “the burden to

demonstrate a likelihood of ‘persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting

8 U.S.C. § 1101(a)(42)(A)). “A well-founded fear of future persecution must be

both ‘subjectively genuine’ and ‘objectively reasonable.’” Gu v. Gonzales, 454 F.3d

1014, 1019 (9th Cir. 2006) (quoting Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.

2003)). To qualify for asylum, Chavez-Licona must also demonstrate that the

persecution will be committed by the government or by forces that the government

is unable or unwilling to control. Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064

2 23-4056 (9th Cir. 2020). To establish eligibility for withholding of removal, Chavez-Licona

must establish “that it is more likely than not” that she will be persecuted if returned

to Honduras “because of” her membership in a particular social group or other

protected ground. Barajas-Romero v. Lynch, 846 F.3d 351, 357, 360 (9th Cir. 2017);

see 8 U.S.C. § 1231(b)(3)(A).

In this case, we conclude that substantial evidence supports the denial of

asylum and withholding of removal.

First, Chavez-Licona cannot raise her theory of past persecution for the first

time on appeal. Chavez-Licona did not argue past persecution before the IJ, and

Chavez-Licona’s counsel instead confirmed to the IJ that she was not raising past

persecution. Absent “egregious circumstances,” a noncitizen in immigration

proceedings is bound by the admissions of her counsel. Santiago-Rodriguez v.

Holder, 657 F.3d 820, 830–31 (9th Cir. 2011). Chavez-Licona has not properly

asserted an ineffective assistance of counsel claim under the procedures outlined in

Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). We therefore conclude that

the BIA did not err in declining to consider Chavez-Licona’s claim of past

persecution. Regardless, we would not conclude that the record compels a finding

of past persecution.

Second, Chavez-Licona has not established an objectively reasonable fear of

future persecution. See Gu, 454 F.3d at 1019. Chavez-Licona was not specifically

3 23-4056 targeted or threatened by the Los Pelones gang in the past, and she was only

tangentially connected to the threats made to her partner. Chavez-Licona’s assertion

of future harm is speculative.

For these reasons, substantial evidence supports the agency’s denial of

asylum. Chavez-Licona therefore cannot meet the higher showing required for

withholding of removal. See Sharma, 9 F.4th at 1066.

2. Substantial evidence also supports the denial of CAT relief. “The

Convention Against Torture provides mandatory relief for any immigrant who can

demonstrate that ‘it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.’” Andrade v. Garland, 94 F.4th 904,

914 (9th Cir. 2024) (quoting Gutierrez-Alm v. Garland, 62 F.4th 1186, 1200–01 (9th

Cir. 2023)); see also 8 C.F.R. § 1208.16(c)(2).

Chavez-Licona has not shown that the record compels the conclusion that she

was entitled to CAT relief. Andrade, 94 F.4th at 914. Chavez-Licona did not

experience past torture, and her claims of future harm are speculative. In addition,

the agency did not err in finding that the Honduran government would not acquiesce

to any future torture, as authorities did try to investigate the murder of her partner’s

cousin but were hindered by Chavez-Licona and her partner. The 2020 article

submitted by Chavez-Licona similarly suggests that the police have the ability and

willingness to arrest members of Los Pelones.

4 23-4056 PETITION DENIED.

5 23-4056