Cortez-Barrera v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2023
• Docket: 22-840
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CLAUDIA VIOLETA CORTEZ- No. 22-840 BARRERA; MEILING VIOLETA PEREZ- Agency Nos. CORTEZ; JOSE LEONARDO PEREZ- A215-584-645 CORTEZ, A215-584-646 A215-584-647 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted May 11, 2023 San Francisco, California

Before: MURGUIA, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Claudia Cortez-Barrera, a native and citizen of Guatemala, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) upholding a

denial by the Immigration Judge (“IJ”) of her application for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”). Her two minor children, Meiling and Jose Perez-Cortez, are included

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. in her application as derivatives. We deny the petition.

1. Cortez argues that her due process rights were violated because the

IJ failed to inform her of the availability of pre-conclusion voluntary departure

under 8 U.S.C. § 1229c, as required by 8 C.F.R. § 1240.11(a)(2). See United

States v. Valdez-Novoa, 780 F.3d 906, 913-14 (9th Cir. 2015) (holding that an IJ

must inform applicants in removal proceedings of any forms of immigration

relief, including voluntary departure, for which they are “apparently eligible”).

But Cortez affirmatively waived any right to be informed of her apparent

eligibility for other forms of relief when she waived a “formal reading and

explanation and formal advisal of rights” at her hearing before the IJ. And

Cortez, who was represented by counsel in her removal proceedings, does not

argue that this waiver was not “considered and intelligent.” United States v.

Cisneros-Rodriguez, 813 F.3d 748, 757 (9th Cir. 2015) (quoting United States v.

Gomez, 757 F.3d 885, 893 (9th Cir. 2014)); see also Troncoso-Oviedo v.

Garland, 43 F.4th 936, 942 (9th Cir. 2022) (holding that the IJ did not violate

the petitioner’s due process rights when relying on his counsel’s representations

regarding a waiver of claims where the petitioner did “not contend that his

counsel was ineffective or that the waiver was not knowing and voluntary”).

2. Cortez next argues that the agency erred in denying her asylum and

withholding of removal. But the agency’s conclusion that the gang targeting

her for extortion was motivated by general criminality and a desire to extract

money rather than by her membership in the particular social group (“PSG”) of

2 22-840 “adult female member[s] of the Cortez-Barrera family” is supported by

substantial evidence. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)

(holding that the “desire to be free from . . . random violence by gang members

bears no nexus to a protected ground”). Cortez has provided no family-related

reason why the gang would have sought to harm her and has instead stated her

belief that it targeted her because it knew she had money as a businessowner.

Cortez contends that, regardless of the initial reason for the threats, she

and her children are now—after Cortez failed to meet the gang’s demands—

being targeted because of their familial relation to one another. But substantial

evidence supports the conclusion that all of the threats are part of an ongoing

extortion event with the same original motivation. In any event, even if the past

extortion attempt could be viewed as triggering some kind of new motivation,

the new motivation would not be family-based with respect to Cortez.

Although the gang may intend to harm Cortez’s children because of their

familial relation to her, the motivation for targeting Cortez would be only

personal retribution, which cannot support a family-based PSG. See Garcia v.

Wilkinson, 988 F.3d 1136, 1145 (9th Cir. 2021) (distinguishing between

“‘animus’ [towards one’s family] (providing nexus) and ‘purely personal

retribution’ (no nexus)”). And in analyzing nexus, we look to the harm suffered

by the lead petitioner, not the derivative applicants. See Ochave v. INS, 254

F.3d 859, 864 (9th Cir. 2001).

Further, despite Cortez’s argument that the IJ applied the wrong nexus

3 22-840 standard for withholding of removal, the IJ’s finding of “no nexus” between the

persecution and any protected ground supports the denial of both asylum and

withholding of removal under their respective standards. See Barajas-Romero

v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017).

3. Cortez lastly argues that the agency erred in focusing on the torture

element, as opposed to looking at all of the factors under 8 C.F.R.

§ 1208.16(c)(3)(i)-(iv), when denying her relief under CAT. But Cortez does

not point to any evidence that the IJ failed to consider. The IJ here noted that

the IJ had considered “[a]ll documentary and testimonial evidence . . . whether

or not specifically mentioned,” and the regulation does not require that the IJ’s

decision “discuss every piece of evidence.” See Almaghzar v. Gonzales, 457

F.3d 915, 922 (9th Cir. 2006).

PETITION DENIED.

4 22-840