Guillermina Ibarra-Castaneda v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 5, 2019
• Docket: 16-73296
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 05 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS GUILLERMINA IBARRA- No. 16-73296 CASTANEDA; VALERIA RODRIGUEZ- IBARRA; MANUEL D. RODRIGUEZ- Agency Nos. A205-666-473 IBARRA; OSVALDO M. RODRIGUEZ- A205-666-474 IBARRA, A205-666-475 A205-666-230 Petitioners,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted February 12, 2019 San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.

Guillermina Ibarra-Castaneda (Ibarra) and her children1 petition for review

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 The children’s claims are derivative of Ibarra’s, and the success of their claims depends on the success of her claims. of the dismissal by the Board of Immigration Appeals (the Board) of her asylum

claim.

We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the Board’s

factual findings for substantial evidence. See Lai v. Holder, 773 F.3d 966, 970

(2014), as amended. To reverse the Board, “we must determine that the evidence

not only supports a contrary conclusion, but compels it.” Ling Huang v. Holder,

744 F.3d 1149, 1152 (9th Cir. 2014) (citation and alteration omitted) (emphases in

the original).

“To establish asylum eligibility, an applicant must show that [s]he is unable

or unwilling to return to [her] country of nationality because of [past] persecution

or a well-founded fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013) (citations and internal

quotation marks omitted).

1. Substantial evidence supports the Board’s denial of asylum based on

past persecution. To prove past persecution, a petitioner must establish that: “(1)

[her] treatment rises to the level of persecution; (2) the persecution was on account

of one or more protected grounds; and (3) the persecution was committed by the

government, or by forces that the government was unable or unwilling to control.”

2 Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc).

Ibarra’s claim failed on the third prong. Although there was testimony that

individual police officers were involved in actions directed toward harming

Ibarra’s brothers, the evidence was not sufficient to compel a finding of

government involvement. Nor did the evidence compel a finding that the

government was unwilling or unable to control nongovernmental forces. Police

arrested the killer of Ibarra’s brother, and took reports documenting many of

Ibarra’s complaints. Any purported failure to investigate was due to Ibarra’s and

her family’s inability to provide detailed information. See Nahrvani v. Gonzales,

399 F.3d 1148, 1154 (9th Cir. 2005) (holding that petitioner failed to establish

government inability or unwillingness to control nongovernmental forces where

petitioner admitted that he failed to provide identifying and specific information to

the police).

2. Substantial evidence also supports the Board’s conclusion that Ibarra

lacked an objective, well-founded fear of future persecution. “To demonstrate a

well-founded fear of future persecution, the alien must establish that her fear is

both subjectively genuine and objectively reasonable.” Lolong v. Gonzales, 484

F.3d 1173, 1178 (9th Cir. 2007) (citation omitted). “The objective component is

more demanding and ‘requires credible, direct, and specific evidence,’ that the

3 petitioner faces an individualized risk of persecution or that there is a pattern or

practice of persecution against similarly situated individuals.” Id. at 1178-79

(citations omitted).

As Ibarra alleged only one threat directed against her communicated through

a third party, the record does not compel a finding that Ibarra made an adequate

showing of a specific, individualized risk. See Hoxha v. Ashcroft, 319 F.3d 1179,

1182 (9th Cir. 2003) (explaining that unfulfilled threats generally “constitute

harassment rather than persecution”).

Nor did Ibarra establish a pattern or practice against similarly situated

individuals, especially when her family members continue to live in the country

without incident. See Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006), as

amended (“An applicant’s claim of persecution upon return is weakened, even

undercut, when similarly-situated family members continue to live in the country

without incident.”) (citation and alteration omitted).

3. We lack jurisdiction to hear Ibarra’s withholding of removal claim,

because Ibarra failed to present this issue to the Board. See Olivas-Motta v.

Whitaker, 910 F.3d 1271, 1279-80 (9th Cir. 2018). No remand is required to

address the effect of our recent decision in Barajas-Romero v. Lynch, 846 F.3d 351

4 (9th Cir. 2017), because that decision merely reiterated the longstanding

withholding of removal standard. See id. at 358.

DISMISSED IN PART and DENIED IN PART.