Garcia Vazquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2023
• Docket: 21-983
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE EDUARDO GARCIA VAZQUEZ, No. 21-983 Agency No. Petitioner, A200-150-889 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 14, 2023** Seattle, Washington

Before: GRABER, GOULD, and PAEZ, Circuit Judges.

Jose Eduardo Garcia-Vazquez, a native and citizen of Mexico, petitions

for review of a decision of the Board of Immigration Appeals (“BIA”) affirming

an immigration judge’s denial of Garcia-Vazquez’s applications for asylum,

withholding of removal, and protection under the United Nations Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1).

* 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). We review for substantial evidence the factual findings underlying the BIA’s

determinations. Hussain v. Rosen, 985 F.3d 634, 641–42 (9th Cir. 2021). We

deny the petition for review.

1. Even assuming that Garcia-Vazquez’s family membership constituted

a protected “particular social group” upon which a claim for asylum or

withholding of removal could be based, substantial evidence supports the BIA’s

finding that Garcia-Vazquez failed to establish a nexus between any persecution

and his family membership for purposes of asylum or withholding of removal.

See Sharma v. Garland, 9 F.4th 1052, 1059–60 (9th Cir. 2021) (stating nexus

requirement for asylum and withholding). Garcia-Vazquez’s testimony that a

relative was kidnapped for financial reasons did not show a nexus to his family

membership. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021)

(finding no evidence of a nexus where gang members killed the petitioner’s

uncle, but the record contained no indication that his uncle’s family membership

was a reason why the gang did so). Nor did his testimony that his cousins had

experienced violence demonstrate sufficient nexus. See Korablina v. INS, 158

F.3d 1038, 1043–44 (9th Cir. 1998) (explaining that, although violence against

a petitioner’s friends or family members may establish a well-founded fear of

persecution, the violence must “create a pattern of persecution closely tied to

the petitioner” (internal citation and quotation marks omitted)). Lastly, Garcia-

Vazquez’s testimony that he feared indiscriminate violence in Mexico did not

show a nexus to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016

2 21-983 (9th Cir. 2010) (“An alien’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.”).

Garcia-Vazquez raises a new argument before this court concerning the

particular social group of returning immigrants. Because he failed to make that

argument to the BIA, the argument was waived or forfeited, and we decline to

consider it on the merits. See Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1116

(2023) (holding that, although 8 U.S.C. § 1252(d)(1)’s exhaustion requirement

is not jurisdictional, it is still subject to the rules regarding waiver and

forfeiture).

2. Substantial evidence also supports the BIA’s finding that Garcia-

Vazquez failed to establish that he is “more likely than not [to] be tortured with

the consent or acquiescence of a public official if removed” to Mexico for

purposes of CAT protection. See Xochihua-Jaimes v. Barr, 962 F.3d 1175,

1183 (9th Cir. 2020) (explaining the petitioner’s burden to show eligibility for

CAT protection). Garcia-Vazquez testified that he had experienced no harm

while living in Mexico, and neither his testimony that a relative was kidnapped

for financial reasons nor his general fear of indiscriminate violence compels the

conclusion that he was likely to be tortured if returned to Mexico. See Santos-

Ponce, 987 F.3d at 891 (holding that “the fact that [the petitioner’s] uncle was

killed for unspecified reasons, combined with the existence of generalized

violence,” was insufficient to show a likelihood that the petitioner would be

3 21-983 tortured).

PETITION FOR REVIEW DENIED.

4 21-983