Esmeralda Martinez Lemos v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2020
• Docket: 18-72857
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ESMERALDA MARTINEZ LEMOS; et al., No. 18-72857

Petitioners, Agency Nos. A206-372-167 A206-372-166 v. A206-372-168 A206-372-169 WILLIAM P. BARR, Attorney General, A206-372-170 A206-372-171 Respondent.

MEMORANDUM*

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

Submitted July 10, 2020** Seattle, Washington

Before: CLIFTON, D.M. FISHER,*** and M. SMITH, Circuit Judges.

Petitioners Esmeralda Martinez Lemos and her five children seek review of

the Board of Immigration Appeals’ (BIA) denial of their applications for asylum,

* 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 D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. withholding of removal, and protection under the Convention Against Torture

(CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We deny the petition.

Petitioners argue that the agency violated their right to due process because

the Immigration Judge (IJ) and BIA used the phrase “anti-gang political opinion,”

while their political opinion is actually one of “neutrality” in the feud between the

Knights Templar and the Self-Defense Groups. The BIA violates due process if

“(1) the proceeding was so fundamentally unfair that the alien was prevented from

reasonably presenting h[er] case, and (2) the alien demonstrates prejudice, which

means that the outcome of the proceeding may have been affected by the alleged

violation.” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (quoting

Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)).

Petitioners were not prevented from reasonably presenting their case. The IJ

directly considered the political neutrality argument, saying, “I saw your

[neutrality] arguments, they’re here. But . . . what [Petitioners] believed in

politically, . . . is just completely unrelated to anything.” The IJ further stated that

he was “trying to probe if there were some other issues involved.” Having found

none, he concluded there was no evidence suggesting that the Knights Templar

were motivated by Petitioners’ “anti-gang” beliefs. The BIA affirmed on the same

2 18-72857 basis. Regardless of terminology, the agency did not prevent Petitioners from

reasonably presenting their argument.

Even if Petitioners were prevented from reasonably presenting their case,

they have not demonstrated prejudice. An asylum seeker claiming past or future

persecution on account of a political opinion must establish, among other things,

that her persecutors know of her political opinion (or impute it to her) and that her

political opinion causes the persecution. Sangha v. INS, 103 F.3d 1482, 1487 (9th

Cir. 1997). No evidence suggests that the Knights Templar knew of Madrigal’s

political opinion and acted on account of it when they demanded money and

kidnapped him. Contrary to Petitioners’ assertion, Gonzales-Neyra v. INS, 122

F.3d 1293 (9th Cir. 1997), does not support their claim. In that case, the applicant

“expressed [his political opinion] to his persecutors, and . . . they threatened him

only [afterwards].” Id. at 1296. Evidence that Petitioners and Madrigal were not

involved with, refused to help, or were afraid of both groups, does not suffice to

demonstrate that the Knights Templar knew of and acted on account of their

neutral political opinion.

Petitioners confuse the law regarding their family membership claim. They

needed to show that the Knights Templar targeted them on account of their familial

relationship with Madrigal, Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015), a

3 18-72857 ground of persecution distinct from whether the Knights Templar targeted

Madrigal on account of his political opinion. However, substantial evidence

supports the agency’s conclusion that the Knights Templar shouted threats at

Petitioners to get on the ground only because they were bystanders to the

kidnapping, and that the Knights Templar kidnapped Madrigal only to extort

Madrigal himself, not to persecute his family.

Finally, the BIA and IJ adequately evaluated Petitioners’ CAT claim. The

BIA agreed with the IJ’s two-paragraph analysis, concluding that Petitioners did

not show they were more likely than not to be tortured by or with the acquiescence

of a government official. Petitioners point to no record evidence that would compel

a different finding.

PETITION DENIED.

4 18-72857