Elizabeth Sanchez Fernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2022
• Docket: 18-73395
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 14 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH SANCHEZ FERNANDEZ, No. 18-73395 AKA Sandra Hilda Aguilar Campoverde, AKA Dora Fernandez Ortiz, Agency No. A208-924-401

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 9, 2022** Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges.

Elizabeth Sanchez Fernandez seeks review of a decision of the Board of

Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ)

* 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). denying her claims for asylum, withholding of removal, and relief under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.

Because the BIA conducted its own review of the evidence and law, “our review is

limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly

adopted.” Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012) (cleaned up).

The immigration court was vested with jurisdiction over Sanchez

Fernandez’s case. Sanchez Fernandez received a Notice to Appear (NTA), and

well before the hearing, she also received a Notice of Hearing that specified the

time, date, and location of the hearing. See Aguilar Fermin v. Barr, 958 F.3d 887,

889, 893–95 (9th Cir. 2020); see also Karingithi v. Whitaker, 913 F.3d 1158,

1160–61 (9th Cir. 2019). We reject Sanchez Fernandez’s argument that the Notice

of Hearing she received was deficient because it did not reference a specific NTA

or specify the legal issues or charges involved because the regulations do not

require the inclusion of such information. See 8 C.F.R. §§ 1003.13, 1003.14,

1003.15, 1003.18.

Because Aguilar Fermin and Karingithi have not been overruled by a higher

authority or superseded by agency opinion, we remain bound by them, and reject

Sanchez Fernandez’s argument to the contrary. See Gonzalez v. Arizona, 677 F.3d

383, 390 n.4 (9th Cir. 2012), aff’d sub nom. Arizona v. Inter Tribal Council of

2 Ariz., Inc., 570 U.S. 1 (2013). Sanchez Fernandez’s reliance on Pereira v.

Sessions, 138 S.Ct. 2105 (2018), is misplaced, because Pereira has no application

to the jurisdiction of the immigration court, see Karingithi, 913 F.3d at 1160–61.

We uphold the agency’s denial of Sanchez Fernandez’s claims for asylum

and withholding of removal. The BIA’s determination that Sanchez Fernandez

failed to show a nexus between future persecution and her family membership was

supported by substantial evidence because nothing in the record suggests that the

criminals Sanchez Fernandez had encountered had any motivation other than

financial gain. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Further,

Sanchez Fernandez testified that her son and daughter currently live in Mexico and

have not suffered mistreatment. The BIA’s determination that Sanchez Fernandez

was not a member of a protected social group based on her opposition to criminal

activity was supported by substantial evidence because she did not report any

crimes or testify against any criminal. See Pirir-Boc v. Holder, 750 F.3d 1077,

1080, 1084 (9th Cir. 2014); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th

Cir. 2013). While Sanchez Fernandez quarreled with the smuggler she hired to

transport her to the United States, this dispute concerned the quality of the false

document he provided rather than his criminal activities.

3 We uphold the agency’s denial of Sanchez Fernandez’s claim for relief

under the CAT. See 8 C.F.R. § 208.16(c)(2); Al-Saher v. INS, 268 F.3d 1143,

1146–47 (9th Cir. 2001) (as amended). The BIA’s determination that Sanchez

Fernandez did not show that it was more likely than not that a government official

would acquiesce to her future torture was supported by substantial evidence.

Although country condition reports indicated the existence of torture and

government corruption within Mexico, Sanchez Fernandez did not provide

evidence showing she faces any ongoing or particularized threat of torture. See

Tzompantzi-Salazar v. Garland, 25 F.4th 752 (9th Cir. 2022). Generalized

evidence of torture in a country is insufficient. See 8 C.F.R. § 208.16(c)(2); see

also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010); Almaghzar v.

Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).

PETITION DENIED.