NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LESLIE MERARY GARCIA No. 23-3360 SAMAYOA; SHEILY MIRELLA Agency Nos. LINARES GARCIA, A220-466-196 A220-466-197 Petitioners, MEMORANDUM* v.
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 7, 2025** Pasadena, California
Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.
Leslie Merary Garcia Samayoa (“Garcia”) and Sheily Mirella Linares Garcia
(“Linares”) (together “Petitioners”), natives and citizens of Guatemala, petition for
review of a Board of Immigration Appeals (“BIA”) decision dismissing their
* 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). appeal from an order of an Immigration Judge (“IJ”) denying their petitions for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Petitioners also seek review of the BIA’s denial of their
ineffective assistance of counsel claim.
We have jurisdiction under 8 U.S.C. § 1252(a). “Where the BIA adopts and
affirms the IJ’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.
1994), it is adopting the IJ’s decision in its entirety.” Lezama-Garcia v. Holder,
666 F.3d 518, 524 (9th Cir. 2011). Where the BIA cites Burbano and also
provides its own review of the evidence and the law, we review both the IJ’s and
the BIA’s decisions. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir.
2022). We review legal conclusions de novo and factual findings for substantial
evidence. J.R. v. Barr, 975 F.3d 778, 781 (9th Cir. 2020).1 We deny the petition
for review.
1. This case presents threshold questions as to whether Petitioners forfeited
or abandoned their arguments on appeal as to (1) ineffective assistance of counsel
and (2) the denial of asylum, withholding of removal, and protection under the
1 There is disagreement within the Ninth Circuit over the standard of review for determining whether a “particular set of facts does or does not rise to the level of persecution.” Fon v. Garland, 34 F.4th 810, 816 (9th Cir. 2022) (Graber, J., concurring); id. at 820 (Collins, J., concurring); compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (de novo), with Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021) (substantial evidence). We need not resolve this issue, however, because no matter the standard of review, Petitioners’ claims fail.
2 23-3360 CAT. Federal Rule of Appellate Procedure 28(a)(8) requires an opening brief to
provide argument containing, among other things, “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.” Fed. R. App. P. 28(a)(8)(A). We have made clear that issues
not “specifically and distinctly” argued in the opening brief may be deemed
forfeited, Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (as amended)
(citation omitted), and “[i]ssues raised in a brief that are not supported by argument
are deemed abandoned,” Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996).
The government argues that Petitioners abandoned their argument as to
ineffective assistance of counsel. We disagree. Petitioners’ opening brief
presented at least one argument related to prior counsel’s withdrawal of material
evidence, which they claim prejudiced them in their immigration proceedings.
Accordingly, Petitioners sufficiently raised this issue in their opening brief. See
Martinez-Serrano, 94 F.3d at 1259–60.
The government similarly argues “Petitioners’ opening brief does not
meaningfully challenge dispositive bases for the agency’s denial of their
applications for asylum and related relief[,]” including “the agency’s denial of their
CAT protection claim.” We again disagree. The opening brief argues the BIA
erred in finding (1) the harm Petitioners claimed did not rise to the level of
3 23-3360 persecution, (2) the proposed particular social group was not cognizable, (3) there
was no nexus, and (4) that Petitioners failed to establish a clear probability of
torture by or with the acquiescence of a government official. These arguments are
sufficiently specific and distinct to fairly present them to this court. See
Hernandez, 47 F.4th at 916.
2. We turn to the merits. The right to effective assistance of counsel in
immigration proceedings stems from the Fifth Amendment’s guarantee of due
process. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). To
assert ineffective assistance of counsel, a noncitizen must generally comply with
the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
See Melkonian v. Ashcroft, 320 F.3d 1061, 1071–72 (9th Cir. 2003). Under
Lozada, the noncitizen must “(1) provide an affidavit describing in detail the
agreement with counsel; (2) inform counsel of the allegations and afford counsel
an opportunity to respond; and (3) report whether a complaint of ethical or legal
violations has been filed, and if not, why.” Id. at 1072 (citing Lozada, 19 I. & N.
Dec. at 639). However, “[t]he Lozada factors are not rigidly applied, especially
where their purpose is fully served by other means.” Morales Apolinar v.
Mukasey, 514 F.3d 893, 896 (9th Cir. 2008).
It is undisputed that Petitioners did not comply with the requirements
outlined in Lozada. The question then, is whether the alleged ineffectiveness is so
4 23-3360 plain on its face that Petitioners’ noncompliance can be excused. See Guan v.
Barr, 925 F.3d 1022, 1033 (9th Cir. 2019). Here, the alleged ineffectiveness
relates to Petitioners’ prior counsel withdrawing screenshots of threatening
Facebook messages. Petitioners, however, cite no authority finding that such
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LESLIE MERARY GARCIA No. 23-3360 SAMAYOA; SHEILY MIRELLA Agency Nos. LINARES GARCIA, A220-466-196 A220-466-197 Petitioners, MEMORANDUM* v.
PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted February 7, 2025** Pasadena, California
Before: WARDLAW, CALLAHAN, and HURWITZ, Circuit Judges.
Leslie Merary Garcia Samayoa (“Garcia”) and Sheily Mirella Linares Garcia
(“Linares”) (together “Petitioners”), natives and citizens of Guatemala, petition for
review of a Board of Immigration Appeals (“BIA”) decision dismissing their
* 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). appeal from an order of an Immigration Judge (“IJ”) denying their petitions for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Petitioners also seek review of the BIA’s denial of their
ineffective assistance of counsel claim.
We have jurisdiction under 8 U.S.C. § 1252(a). “Where the BIA adopts and
affirms the IJ’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.
1994), it is adopting the IJ’s decision in its entirety.” Lezama-Garcia v. Holder,
666 F.3d 518, 524 (9th Cir. 2011). Where the BIA cites Burbano and also
provides its own review of the evidence and the law, we review both the IJ’s and
the BIA’s decisions. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir.
2022). We review legal conclusions de novo and factual findings for substantial
evidence. J.R. v. Barr, 975 F.3d 778, 781 (9th Cir. 2020).1 We deny the petition
for review.
1. This case presents threshold questions as to whether Petitioners forfeited
or abandoned their arguments on appeal as to (1) ineffective assistance of counsel
and (2) the denial of asylum, withholding of removal, and protection under the
1 There is disagreement within the Ninth Circuit over the standard of review for determining whether a “particular set of facts does or does not rise to the level of persecution.” Fon v. Garland, 34 F.4th 810, 816 (9th Cir. 2022) (Graber, J., concurring); id. at 820 (Collins, J., concurring); compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (de novo), with Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021) (substantial evidence). We need not resolve this issue, however, because no matter the standard of review, Petitioners’ claims fail.
2 23-3360 CAT. Federal Rule of Appellate Procedure 28(a)(8) requires an opening brief to
provide argument containing, among other things, “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.” Fed. R. App. P. 28(a)(8)(A). We have made clear that issues
not “specifically and distinctly” argued in the opening brief may be deemed
forfeited, Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (as amended)
(citation omitted), and “[i]ssues raised in a brief that are not supported by argument
are deemed abandoned,” Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996).
The government argues that Petitioners abandoned their argument as to
ineffective assistance of counsel. We disagree. Petitioners’ opening brief
presented at least one argument related to prior counsel’s withdrawal of material
evidence, which they claim prejudiced them in their immigration proceedings.
Accordingly, Petitioners sufficiently raised this issue in their opening brief. See
Martinez-Serrano, 94 F.3d at 1259–60.
The government similarly argues “Petitioners’ opening brief does not
meaningfully challenge dispositive bases for the agency’s denial of their
applications for asylum and related relief[,]” including “the agency’s denial of their
CAT protection claim.” We again disagree. The opening brief argues the BIA
erred in finding (1) the harm Petitioners claimed did not rise to the level of
3 23-3360 persecution, (2) the proposed particular social group was not cognizable, (3) there
was no nexus, and (4) that Petitioners failed to establish a clear probability of
torture by or with the acquiescence of a government official. These arguments are
sufficiently specific and distinct to fairly present them to this court. See
Hernandez, 47 F.4th at 916.
2. We turn to the merits. The right to effective assistance of counsel in
immigration proceedings stems from the Fifth Amendment’s guarantee of due
process. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). To
assert ineffective assistance of counsel, a noncitizen must generally comply with
the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
See Melkonian v. Ashcroft, 320 F.3d 1061, 1071–72 (9th Cir. 2003). Under
Lozada, the noncitizen must “(1) provide an affidavit describing in detail the
agreement with counsel; (2) inform counsel of the allegations and afford counsel
an opportunity to respond; and (3) report whether a complaint of ethical or legal
violations has been filed, and if not, why.” Id. at 1072 (citing Lozada, 19 I. & N.
Dec. at 639). However, “[t]he Lozada factors are not rigidly applied, especially
where their purpose is fully served by other means.” Morales Apolinar v.
Mukasey, 514 F.3d 893, 896 (9th Cir. 2008).
It is undisputed that Petitioners did not comply with the requirements
outlined in Lozada. The question then, is whether the alleged ineffectiveness is so
4 23-3360 plain on its face that Petitioners’ noncompliance can be excused. See Guan v.
Barr, 925 F.3d 1022, 1033 (9th Cir. 2019). Here, the alleged ineffectiveness
relates to Petitioners’ prior counsel withdrawing screenshots of threatening
Facebook messages. Petitioners, however, cite no authority finding that such
conduct would plainly constitute ineffective assistance. But even if it did, it was
not prejudicial because the IJ took the messages into consideration when
evaluating the petition. Therefore, the BIA did not err in finding no ineffective
assistance of counsel based on Petitioners’ failure to comply with the procedural
requirements and failure to demonstrate prejudice.
3. Petitioners argue that the BIA erred in affirming the IJ’s conclusions that
(a) the harm they allegedly suffered did not rise to the level of persecution, (b)
their proposed particular social group was not cognizable, and (c) there was no
nexus between an alleged protected status and the harm.
a. Petitioners argue that the threatening Facebook messages and the
three instances in which Garcia was followed and chased by motorcycles compels
a finding of harm that rises to the level of persecution. “[T]hreats may be
compelling evidence of past persecution, particularly when they are specific and
menacing and are accompanied by evidence of violent confrontations, near-
confrontations and vandalism.” Flores Molina v. Garland, 37 F.4th 626, 634 (9th
Cir. 2022) (citation omitted). Here, however, the IJ found that the threats were
5 23-3360 nonspecific, there is uncertainty as to the target of the threats (Garcia or her
mother), there was no vandalism, and the confrontations involved unknown and
unspecified individuals. It is also unclear from the record whether the Facebook
threats were connected to the motorcycles that followed and chased Garcia. The
record, thus, does not compel a finding that the harm in this case rose to the level
of persecution.
b. In finding that Petitioners’ proposed particular social group,
“Guatemalan Single Mothers Who Are Being Targeted by Criminal Organizations
Because of Their Perceived Vulnerabilities,” was not cognizable, the IJ found
insufficient evidence regarding “the immutable characteristic, the particularity,
[and the] social[] distinct[ion]” of this proposed group. We review de novo the
legal question of whether a particular social group is cognizable, and we review
underlying findings of fact, including determinations of social distinction, for
substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir.
2020).
Petitioners “must show that the proposed social group is ‘(1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question.’” Id. (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). As the IJ accurately
found, there is insufficient evidence in the record demonstrating that Guatemalan
6 23-3360 society generally recognizes single mothers who are targeted by criminal
organizations as a distinct group. Further, it is unclear if the status of being a
“single” person would constitute an immutable characteristic. Therefore, the
agency did not err in finding the proposed social group not cognizable.
c. Even if the proposed particular social group was cognizable, the
agency did not err in finding a lack of nexus between the harm and any protected
ground. Petitioners must “show that there is a nexus between [the purported]
mistreatment and a protected ground.” Khudaverdyan v. Holder, 778 F.3d 1101,
1106 (9th Cir. 2015) (quotation marks and citation omitted); see also Garcia v.
Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (discussing the nexus requirement
for withholding of removal). We review the agency’s finding as to a persecutor’s
actual motive for substantial evidence. Vasquez-Rodriguez v. Garland, 7 F.4th
888, 893 (9th Cir. 2021).
Garcia asserts that she “was ‘singled out’ on account of her vulnerability as a
single mother and thus a protected ground.” But there is no evidence that the
threatening Facebook message and the three instances where Garcia was followed
and chased by motorcycles are connected to any protected status. The agency,
thus, did not err in finding no nexus.
4. Finally, Petitioners argue the agency erred in denying them CAT
protection. We review for substantial evidence the factual findings underlying the
7 23-3360 BIA’s determination that an applicant is not eligible for protection under the CAT.
Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021). Petitioners cite no case, and
we have found none, that would support a finding that they faced a particularized
threat of torture based on vague Facebook threats and three instances of being
followed by unknown persons. Moreover, the evidence does not compel the
conclusion that these events were committed (1) by the government, because the
individuals are unknown, or (2) with the acquiescence of the government, because
the record shows Garcia was able to file a police report without difficulty and with
no additional incidents following. See Ornelas-Chavez v. Gonzales, 458 F.3d
1052, 1059 (9th Cir. 2006) (“Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to intervene to prevent
such activity” (citing 8 C.F.R. § 208.18(a)(7).).
PETITION DENIED.
8 23-3360