Clerida Lopez Ramirez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2023
• Docket: 18-73213
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLERIDA MARICELA LOPEZ RAMIREZ, No. 18-73213

Petitioner, Agency No. A209-872-418

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 10, 2023** Pasadena, California

Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.

Petitioner Clerida Lopez Ramirez, a native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals (“BIA”) decision

upholding an immigration judge’s (“IJ”) (collectively, the “Agency”) denial of her

application for 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”). Before us, Lopez Ramirez raises four main arguments.

She asserts that the Agency erred (1) in holding she did not belong to a legally

cognizable particular social group; (2) in concluding that her fear of persecution

did not bear a nexus to her membership in that particular social group; (3) in

determining that future persecution was not likely to occur should she be removed;

and (4) in finding that she did not establish eligibility for protection under CAT.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Where, as here, the BIA adopts the IJ’s decision and also provides its own

review of the evidence and the law, we review both the IJ and the BIA’s decisions.

Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We review de novo questions

of law and for substantial evidence the factual findings underlying the BIA’s

determination that a petitioner is not eligible for asylum, withholding of removal,

or CAT relief. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).

Under the deferential substantial evidence standard, a petitioner “must show that

the evidence not only supports, but compels the conclusion that these findings and

decisions are erroneous.” Id.

1. The Agency did not err in finding that Lopez Ramirez has not established

membership in a legally cognizable particular social group. See Reyes v. Lynch,

842 F.3d 1125, 1131–32 (9th Cir. 2016) (explaining cognizability standard)

(citing Matter of M-E-G-V-, 26 I & N Dec. 227, 237 (BIA 2014)).

2 Whether a group constitutes a “particular social group” is a question of law that we

review de novo. Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). The

Agency correctly found that Lopez Ramirez’s proffered social group comprising

“young, impoverished Guatemalan women who refuse to join or cooperate with a

gang or criminal organization” was not legally cognizable because it failed to meet

the particularity and social distinction requirements. We have previously found

similar social groups are not legally cognizable. See, e.g., Barrios v. Holder, 581

F.3d 849, 855 (9th Cir. 2009) (holding that “young men in Guatemala who resist

gang recruitment” is not a cognizable particular social group), abrogated in part

by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013).

2. Similarly, the IJ did not err in finding that Lopez Ramirez failed to

demonstrate a nexus between her proposed particular social group and the alleged

persecution she faced. Substantial evidence supports the conclusion that the Mara

18 gang’s acts of retribution at the Catarina marketplace may have been motivated

by nothing more than the gang’s general desire to increase its membership. 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.”). Although Lopez Ramirez argues that the

kidnapping and murder of her uncle supports her claims, substantial evidence

supports the IJ’s conclusion because (1) the events involving her uncle took place

3 four years earlier, (2) Lopez Ramirez merely speculated it was the same local gang

that perpetrated the killing, and (3) the kidnapping and murder bore no apparent

link to her own persecution.

3. Lopez Ramirez’s claim that the Agency erred in denying her application

for withholding of removal is similarly unpersuasive. To qualify for withholding

of removal, a petitioner must show by a “clear probability” that she would be

subject to persecution on account of a protected ground. Tamang v. Holder, 598

F.3d 1083, 1091 (9th Cir. 2010) (explaining standard of “clear probability” means

“more likely than not”); see 8 U.S.C. § 1231(b)(3)(A). But given Lopez Ramirez

has failed to establish eligibility for asylum relief, her application under the more

stringent standard for withholding of removal also fails. Pedro-Mateo v. INS, 224

F.3d 1147, 1150 (9th Cir. 2000) (“A failure to satisfy the lower standard of proof

required to establish eligibility for asylum . . . necessarily results in a failure to

demonstrate eligibility for withholding of deportation.”).

4. Finally, the Agency did not err in denying Lopez Ramirez’s application

for protection under CAT. To qualify for protection, she must demonstrate that it

is “more likely than not” that she would be tortured by public officials, or with

their acquiescence, if removed to Guatemala. 8 C.F.R. § 208.16(c)(2); see Garcia-

Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014). Substantial evidence

supports the finding that Lopez Ramirez has not experienced torture in the past.

4 Substantial evidence further supports the finding that it is not “more likely than

not” that Lopez Ramirez would be tortured by public officials, or with their

acquiescence, in the future. Finally, the IJ reasonably determined that Lopez

Ramirez was not eligible for relief because she failed to offer evidence that she

could not relocate within Guatemala to avoid persecution. On appeal she offers no

argument to the contrary and has thus waived any objection to the Agency’s

findings. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (“We will

not ordinarily consider matters on appeal that are not specifically and distinctly

argued in appellant’s opening brief.”) (cleaned up).

The petition for review is DENIED.