Francisco-Pablo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2023
• Docket: 21-1350
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGELINA FRANCISCO PABLO, et al., No. 21-1350 Agency Nos. Petitioners, A208-656-911; A208-656-910 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 16, 2023** Pasadena, California

Before: CLIFTON and SANCHEZ, Circuit Judges, and KORMAN, District Judge.***

Angelina Francisco Pablo (Francisco Pablo), and her minor daughter

A.A.P.F., natives and citizens of Guatemala, petition for review of the Board of

Immigration Appeals’ (BIA) streamlined decision affirming the Immigration

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C).

*** The Honorable Edward Korman, Senior United States District Judge for the Eastern District of New York, sitting by designation. Judge’s (IJ) denial 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. Reviewing the IJ’s factual findings for substantial

evidence and its legal conclusions de novo, see Flores Molina v. Garland, 37

F.4th 626, 632 (9th Cir. 2022), we dismiss in part and deny in part the petition

for review.

1. Francisco Pablo argues that the IJ erred in denying her relief based

on past persecution premised on her political opinion. But she explicitly waived

this argument before the IJ and did not present it to the BIA. A “[f]ailure to

raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies

with respect to that question.” Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.

2004) (alteration in original) (quoting Vargas v. U.S. Dep’t. of Immigr. & Nat.,

831 F.2d 906, 907–08 (9th Cir. 1987)), abrogated in part by Santos-Zacaria v.

Garland, 143 S. Ct. 1103 (2023).

2. We also decline to consider Francisco Pablo’s argument that she

would be subjected to torture upon return to Guatemala as someone with

assumed wealth returning from the United States. She did not raise the issue

before the IJ, and only mentioned it in the statement of facts without further

argument on agency appeal as well as on review here. See Martinez-Serrano v.

I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not

supported by argument are deemed abandoned. Furthermore, an issue referred

to in the appellant’s statement of the case but not discussed in the body of the

2 21-1350 opening brief is deemed waived.” (internal citations omitted)).

3. Francisco Pablo raises for the first time that the original defective

Notice to Appear (NTA) deprived the IJ of jurisdiction. The argument is

waived where she did not raise it before the IJ or BIA. See Ruiz-Colmenares v.

Garland, 25 F.4th 742, 748 (9th Cir. 2022). Even if not waived, a defective

NTA does not deprive the immigration court of jurisdiction. See Karingithi v.

Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019); see also United States v.

Bastide-Hernandez, 39 F.4th 1187, 1191 (9th Cir. 2022), cert. denied, 143 S.

Ct. 755, 214 L. Ed. 2d 454 (2023).

Francisco Pablo also waived the argument that the defective NTA does

not stop the accrual of the one-year physical presence required for post-

conclusion voluntary departure. See 8 U.S.C. § 1229c(b)(1)(A). Although this

court has recently held that an NTA missing the date and time does not trigger

the time-stop rule under 8 U.S.C. § 1229c(b)(1)(A), see Posos-Sanchez v.

Garland, 3 F.4th 1176, 1180, 1185 (9th Cir. 2021), Francisco Pablo did not seek

post-conclusion voluntary departure before the IJ, and did not present the issue

before the BIA after Posos-Sanchez was decided. Accordingly, these arguments

are dismissed for failure to exhaust.

4. Substantial evidence supports the IJ’s determination that there is no

nexus between Francisco Pablo’s proposed particular social group and fear of

future harm. The nexus requirement under asylum requires that “an applicant

must show that the protected ground was ‘at least one central reason’ the

3 21-1350 applicant was persecuted.” Aden v. Wilkinson, 989 F.3d 1073, 1084 (9th Cir.

2021) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Although the nexus standard for

withholding of removal is not as demanding, it still requires that the social

group be at least “a reason” for the fear. Barajas-Romero v. Lynch, 846 F.3d

351, 358–60 (9th Cir. 2017).

Substantial evidence supports the IJ’s finding that Francisco Pablo’s fear

of future harm was grounded in a general fear of violence perpetrated by private

actors. A non-citizen’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.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). The

IJ properly considered the evidence before it, including Francisco Pablo’s

testimony, country conditions, and family ties, to find that there was no nexus

between her fear of future persecution and the claimed membership in a

particular social group. See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th

Cir. 2016) (“The lack of a nexus to a protected ground is dispositive of his

asylum and withholding of removal claims.”).

5. Finally, substantial evidence supports the agency’s denial of CAT

relief because Francisco Pablo was not subject to past torture and there is no

evidence that she faces a particularized risk of torture if returned to Guatemala.

She presented no evidence that criminal gangsters in Guatemala acted with the

consent or acquiescence of any government official. Francisco Pablo argues

that the Guatemalan government’s efforts to remedy violence are generally

4 21-1350 ineffective. But “a general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show acquiescence” and the

“inability to bring the criminals to justice is not evidence of acquiescence, as

defined by the applicable regulations.” Andrade-Garcia v. Lynch, 828 F.3d 829,

836 (9th Cir. 2016); see also Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1184

(9th Cir. 2020).

PETITION DISMISSED IN PART AND DENIED IN PART.

5 21-1350