Ingris Hernandez-Vasquez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 9, 2021
• Docket: 18-70824
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 9 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

INGRIS SELENA HERNANDEZ No. 18-70824 VASQUEZ; ROMEL DAVID HERNANDEZ VASQUEZ, Agency Nos. A208-542-371 A208-542-370 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General, Respondent.

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

Argued and Submitted December 11, 2020 Pasadena, California

Before: BEA, THAPAR,** and COLLINS, Circuit Judges. Concurrences by Judge Bea and Judge Collins

Petitioners Ingris Selena Hernandez Vasquez (“Hernandez”) and her minor

son Romel David Hernandez Vasquez (“Romel”) are natives and citizens of

Honduras who petition for review of the decision of the Board of Immigration

Appeals (“BIA”) affirming the order of the Immigration Judge (“IJ”) denying their

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“Torture Convention”).1 We have jurisdiction under

§ 242 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We

review legal questions de novo and the agency’s findings of fact for substantial

evidence. Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). Under the

latter standard, the agency’s factual findings must be upheld unless “any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). We deny the petitions.

I

Petitioners contend that the notices to appear served on them by the

Department of Homeland Security were defective, because they did not include the

date and time of the hearing and because they apparently listed the wrong location.

These defects did not preclude jurisdiction from vesting in the Los Angeles

Immigration Court when those documents were filed there, especially where (as

here) the correct information was supplied in a subsequent notice served on

Hernandez prior to the scheduled hearing. See Aguilar Fermin v. Barr, 958 F.3d

887, 894–95 (9th Cir. 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir.

2019).

1 Romel asserts a derivative asylum claim based on his mother’s application. Although he has also filed his own application for all three forms of relief, that application relies upon the same facts as those asserted in his mother’s application.

2 II

To be eligible for asylum, an applicant must show that he or she was

persecuted, or has a well-founded fear of persecution, “on account of race, religion,

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

8 U.S.C. § 1101(a)(42)(A); see also id. § 1158(b)(1)(B)(i) (applicant must show

that one of these protected grounds “was or will be at least one central reason for

persecuting the applicant”). “To qualify for withholding of removal, an applicant

must show a ‘clear probability’ of future persecution” on account of one of the

same protected grounds. Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014)

(citation omitted). However, for a withholding claim, the protected ground need

only be “a reason” for the persecution, and not (as with asylum) “one central

reason.” Barajas-Romero v. Lynch, 846 F.3d 351, 358–59 (9th Cir. 2017). We

conclude that substantial evidence supports the agency’s conclusion that neither

Petitioner established the requisite causal nexus as to any of their proposed social

groups, and their applications for asylum and withholding of removal were

therefore properly denied.

A

In asserting that she had established past persecution, Hernandez relied on

(1) the brutal sexual assault and rape committed by a gang member against her in

2012, when she was only 15; and (2) extortionate demands and threats made by

3 Mara Salvatrucha (“MS-13”) gang members in 2015. Substantial evidence

supports the agency’s determination that Hernandez’s membership in her asserted

social groups was not a reason for either type of mistreatment by the gang.

The agency permissibly concluded, based on the evidence in the record, that

Hernandez was “the victim of a horrible random act of violence” when she was

raped in 2012 and that the perpetrator was not motivated by her membership in her

proposed social groups—viz., “Honduran women,” “Honduran women lacking

effective familial protection,” and “Hondurans with knowledge of criminal activity

perpetrated by gang members.” The fact that Hernandez did not know the

perpetrator supports the inference that the rapist also knew little about her,

including her nationality, her lack of familial protection, or her knowledge of gang

criminal activity.2 See Ochave v. INS, 254 F.3d 859, 865–66 (9th Cir. 2001)

(evidence that rapists did not know victim before the attack provided substantial

evidence for agency conclusion that rape lacked a nexus to a protected ground). At

oral argument, Petitioner argued that the proposed social group of “Honduran

women” should be understood to mean “women who are physically present in

Honduras” and that her attacker selected her at least in part because she was a

woman who happened to be in Honduras. Petitioner, however, cannot propose a

2 Indeed, as to the third proposed social group, there is little evidence to support the conclusion that, prior to the 2012 assault, Hernandez had any knowledge of gang criminal activity.

4 new particular social group on appeal that was not presented in the proceedings

below, see Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010), and there is no

indication in the record that Petitioner, the IJ, or the BIA ever viewed the relevant

proposed social group as extending beyond women with Honduran nationality.

As to the 2015 extortionate threats against Hernandez, substantial evidence

also supports the agency’s conclusion that they lacked any causal nexus to

Hernandez’s membership in her three proposed social groups. Hernandez herself

testified that the gang members who attempted to extort her “thought we had

money” because of her family’s clothing business. Indeed, when asked directly

what the reason for the threats was, Hernandez responded, “Well, the threats were

for the money.” In concluding that the extortion was driven by criminal greed,

rather than by Hernandez’s membership in her proposed groups, the IJ relied on

this testimony, as well as on country conditions evidence showing that gangs

frequently extort Honduran businesses as a means of funding their criminal

activities. We cannot say that the record compels a conclusion different from the

agency’s.

Given that Hernandez’s past or feared harm lacked any causal nexus to a

protected ground, the agency properly concluded that Hernandez had failed to

establish that she was eligible for either asylum or withholding of removal.

5 B

We likewise conclude that substantial evidence supports the agency’s

conclusion that Romel did not establish a nexus between any past or feared harm

and his membership in his two proposed social groups, namely, “members of

[Hernandez’s] immediate family” and “children fathered by gang members as a

result of rape, whose birth is evidence of the criminal activity.” As the BIA

explained, although Romel was threatened in connection with the 2015

extortionate threats, “the record reflects that the gang members were motivated by

their desire to enrich themselves and protect themselves.” The BIA thus found that

the gang members “were not threatening [Romel] because of his membership” in

his proposed social groups. The record evidence does not compel a contrary

conclusion. Indeed, Hernandez testified that the gang members threatened Romel

as a means of getting money because they “knew we would give up the money to

protect him.”

III

Finally, we conclude that substantial evidence supports the agency’s denial

of relief under the Torture Convention. To qualify for such relief, “an applicant

bears the burden of establishing that she [or he] will more likely than not be

tortured with the consent or acquiescence of a public official if removed to her [or

his] native country.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir.

6 2020). The agency permissibly concluded that neither Petitioner had made that

showing. As the BIA noted, Hernandez’s mother and sister continued to live in

another Honduran town, “an hour and a half away from their prior residence,

without experiencing further problems.” See Maldonado v. Lynch, 786 F.3d 1155,

1164 (9th Cir. 2015) (en banc) (“The IJ must consider all relevant evidence,

including but not limited to the possibility of relocation within the country of

removal.”). And to the extent that country conditions indicate a general level of

violence within Honduras, the agency permissibly determined that such evidence,

even considered with the other record evidence, did not show a “probability of

being singled out for torture” with the acquiescence of Honduran officials. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (“generalized

evidence of violence and crime” in a country that “is not particular to Petitioners

. . . is insufficient to meet th[e] standard” for showing that “it is more likely than

not that they would be tortured if returned” to their home country).

The petitions for review are DENIED.

7 FILED Hernandez Vasquez v. Garland, No. 18-70824 AUG 9 2021 MOLLY C. DWYER, CLERK BEA, Circuit Judge, concurring: U.S. COURT OF APPEALS

I join my colleagues in denying the petitions for review of the decision of

the Board of Immigration Appeals that these Petitioners are ineligible for asylum,

withholding of removal, or relief under the Convention Against Torture. I write

separately to explain that our holding does not, and indeed cannot, preclude the

Attorney General from declining to enforce the final order of removal in this case

as an exercise in prosecutorial discretion.

Shortly before the filing of our disposition, the Government and Petitioners

moved jointly to refer the petitions for review to our circuit’s mediation program.

The joint motion explained that the Attorney General and the Department of

Homeland Security have recently adopted new policies that permit the

administrative closure of removal cases they view as low-priority and concentrate

enforcement resources on removal proceedings they believe involve matters of

national security, recent unauthorized arrivals, and aliens convicted of aggravated

felonies or gang-related crimes. Joint Motion to Refer at 2 & n.1 (citing Matter of

Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), and Interim Guidance to OPLA

Attorneys Regarding Civil Immigration Enforcement and Removal Policies and

Priorities (May 27, 2021)). Given these new policies, Petitioners sought to use mediation to “seek prosecutorial discretion, especially since Ms. Hernandez is now

married to a U.S. citizen and [is] the mother of two U.S. citizen children.” Id. at 3.

Neither referral to mediation nor any other action by this court is required

for the Attorney General to exercise prosecutorial discretion by declining to

enforce this particular order of removal. Article II assigns the President “The

executive Power” to decide when and against whom to enforce federal law and the

solemn duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art.

II, §§ 1, 3; In re Aiken Cty., 725 F.3d 255, 262–66 (D.C. Cir. 2013) (Kavanaugh,

J.) (“The Presidential power of prosecutorial discretion is rooted in Article II ….

Prosecutorial discretion encompasses the Executive’s power to decide whether to

initiate charges for legal wrongdoing and to seek punishment, penalties, or

sanctions against individuals or entities who violate federal law.”); see also

Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n agency’s decision not to

prosecute or enforce, whether through civil or criminal process, is a decision

generally committed to an agency’s absolute discretion.”).

The Supreme Court has specifically recognized that “the Attorney General’s

discrete acts of ‘commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing]

removal orders’” are exercises in prosecutorial discretion “which represent the

initiation or prosecution of various stages in the deportation process.” Reno v.

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (quoting 8 U.S.C.

2 § 1252(g)). “At each stage the Executive has discretion to abandon the endeavor

… for humanitarian reasons or simply for its own convenience.” Id. at 483–84.

The decision not to proceed is unreviewable by the courts. Our involvement is at

an end when the Attorney General decides a particular violation of the immigration

laws is not worth pursuing through the immigration courts and defending before

our court on a petition for review. See 8 U.S.C. § 1252(a) (authorizing judicial

review of “final order[s] of removal”); id. § 1252(b)(3)(A) (naming the Attorney

General as respondent); id. § 1252(a)(2)(b), (g) (limiting judicial review of

discretionary decisions by the Attorney General).

Whether the Attorney General will exercise prosecutorial discretion to the

benefit of these Petitioners is outside our purview. What matters here is that our

denial of these petitions for review has no bearing on the Executive’s inherent

power and responsibility to judge for itself whether proceeding with removal in

this particular case or not is most faithful to the execution of the laws writ large.

3 FILED Hernandez Vasquez v. Garland, No. 18-70824 AUG 9 2021 COLLINS, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

The issuance of our decision in this matter moots the parties’ belated request

to send this long-pending case to court-sponsored mediation. We therefore have

no issue before us concerning the scope of Executive discretion, and I express no

view on any of the matters discussed in Judge Bea’s concurrence.