Diego Castaneda v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2023
• Docket: 21-473
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TRANCITO CASTANEDA DE LEON, No. 21-470 Agency No. Petitioner, A099-504-282 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

PAOLA DIEGO CASTANEDA, No. 21-471 Petitioner, Agency No. A202-097-231 v.

MERRICK B. GARLAND, Attorney General,

ISABEL DIEGO CASTANEDA, No. 21-472 Petitioner, Agency No. A202-097-233 v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. SHEYLA DIEGO CASTANEDA, No. 21-473 Petitioner, Agency No. A202-097-232 v.

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

Submitted June 26, 2023** Pasadena, California

Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.

Trancito Castaneda de Leon and her three children—Paola, Isabel, and

Sheyla Diego Castaneda—seek review of an order from the Board of Immigration

Appeals (BIA) dismissing their appeals of an Immigration Judge’s (IJ) denial of

their motion to terminate removal proceedings and of their applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We review the

agency’s legal conclusions de novo and its factual findings for substantial

evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We

deny the petition for review.

** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 21-470 1. The BIA correctly determined that the Notices to Appear that

initiated the removal proceedings against Castaneda de Leon and her children

vested jurisdiction with the IJ, even if they did not contain the date and time of

the initial removal hearing. See United States v. Bastide-Hernandez, 39 F.4th

1187, 1188 (9th Cir. 2022) (en banc).

2. The BIA properly denied Castaneda de Leon and her children’s

asylum and withholding claims. The BIA did not err in determining that

Castaneda de Leon’s neighbor’s threats to “do something” to her or to “take” one

of her children if she did not repay a debt did not establish past persecution. The

neighbor’s threats were vague, and she did not follow through on them. See

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); Villegas Sanchez

v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021).

In addition, substantial evidence supports the BIA’s determination that

Castaneda de Leon and her children cannot establish a risk of persecution based

on race or family membership. There is no nexus between these characteristics

and the harm that they fear. The record demonstrates that the neighbor targeted

Castaneda de Leon because of her failure to repay the debt, not because of her

Konjobal ethnicity. And Castaneda de Leon’s family members have not been

harmed in Guatemala, undermining her and her children’s race- and family-based

claims for relief. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010).

Moreover, the BIA correctly determined that Castaneda de Leon and her

children are not entitled to relief based on their status as Guatemalans returning

3 21-470 from the United States who are perceived to be wealthy. We have “clearly held

that ‘imputed wealthy Americans’ are not a discrete class of persons recognized

as a particular social group.” Barbosa v. Barr, 926 F.3d 1053, 1060 (9th Cir.

2019) (quoting Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016)).

Finally, the BIA correctly determined that Castaneda de Leon and her

children are not entitled to relief based on the proposed particular social group

consisting of “Konjobal women who, while living without a man in their lives,

were threatened in the past and will be persecuted, tortured, or killed upon return

to Guatemala and would not be protected by the police because of their Konjobal

race.” The BIA correctly determined that this proposed particular social group is

not cognizable because it lacks particularity and social distinction. Any other

errors in its analysis are harmless. See Zamorano v. Garland, 2 F.4th 1213, 1228

(9th Cir. 2021).

First, substantial evidence supports the BIA’s conclusion that this group

lacks social distinction, as there is no evidence that Guatemalans perceive women

living without a man (regardless of ethnicity) to be a distinct group. See Diaz-

Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020). And even if people target

Castaneda de Leon because they perceive her as weak due to her ethnicity or

relationship status, this consideration does not establish social distinction because

social distinction is not “assessed from the perspective of the persecutors.” Id.

Second, the BIA correctly determined that the group is not defined with

particularity. See Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020). The

4 21-470 group lacks “definable boundaries.” See id. (quoting In re W-G-R-, 26 I. & N.

Dec. 208, 214 (BIA 2014)). It is unclear whether it includes only single women

or women who are temporarily separated from a partner, and it is unclear which

Konjobal women living without a man “would not be protected by the police

because of their Konjobal race.”

3. The BIA properly denied Castaneda de Leon and her children’s CAT

claims. Substantial evidence supports the BIA’s determination that the

neighbor’s threats did not constitute torture. See Kaur v. Garland, 2 F.4th 823,

836 (9th Cir. 2021). And the record does not compel the conclusion that the

Guatemalan government would acquiesce in future torture. Even if police cannot

assist Castaneda de Leon because of a language barrier, ineffective law

enforcement does not establish government acquiescence. Garcia-Milian v.

Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Anyway, the record demonstrates

that Guatemala has tried to combat violence against indigenous women. Finally,

the BIA did not err by failing to consider whether relocation would be reasonable

because “the reasonableness of a relocation is not relevant to a CAT claim.”

Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022).

4. We will not consider Castaneda de Leon and her children’s argument

that the IJ violated their due process rights because it is unexhausted. See Amaya

v. Garland, 15 F.4th 976, 986 (9th Cir. 2021). And their argument that the BIA

violated their due process rights fails because they do not show that any violation

prejudiced them or prevented them from presenting their case. See Olea-Serefina

5 21-470 v. Garland, 34 F.4th 856, 866 (9th Cir. 2022).

PETITION DENIED.

6 21-470