Israel Chic Bate v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2022
• Docket: 15-73123
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 15 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ISRAEL CONCEPCION CHIC BATE, No. 15-73123 AKA Genaro Alfaro Rojas, Agency No. A200-245-106 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 13, 2022** San Francisco, California

Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge.

* 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). *** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation. Petitioner Israel Concepcion Chic Bate petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s (“IJ”) denial of his application for asylum, withholding of removal, and

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

8 U.S.C. § 1252. We deny the petition. Because the parties are familiar with the

history of this case, we need not recount it here.

I

The IJ concluded that Chic Bate’s asylum claim was untimely. Chic Bate

does not challenge that conclusion in his opening brief, so we deem the issue

waived. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Chic Bate is

therefore ineligible for asylum because he failed to file his asylum application

within one year of arriving in the U.S. and failed to demonstrate changed or

extraordinary circumstances that excuse an untimely filing. See 8 U.S.C.

§ 1158(a)(2).

II

We lack jurisdiction to consider Chic Bate’s argument that “the threat by

family members [from the intra-family feud] constitutes past persecution,” in

support of his claim for withholding of removal. Chic Bate did not raise this

1 Chic Bate does not pursue his CAT claim here. 2 theory before the BIA and instead argued only that he suffered past persecution as

established by the robbery incident. Because Chic Bate failed to exhaust this issue

before the BIA, we lack jurisdiction to consider the issue here. Sola v. Holder, 720

F.3d 1134, 1135 (9th Cir. 2013).

III

Substantial evidence supports the BIA’s conclusion that Chic Bate failed to

show past persecution on account of a protected ground as necessary for a viable

claim for withholding of removal. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076

(9th Cir. 2020). The BIA did not err in determining that Chic Bate’s espoused

social group of robbery victims was not cognizable because a particular social

group cannot be defined exclusively by the harm asserted to its members. Id. at

1080–81, 1086. Substantial evidence supports the BIA’s determination that this

incident failed the nexus requirement. Because Chic Bate was only robbed once,

he did not become a robbery victim until after he was robbed, and so his

persecutors could not have targeted him because of his membership in that group.

Moreover, Chic Bate fails to meaningfully contest the BIA’s conclusion that “the

sole reason for the crime was a profit motive by criminals.” Substantial evidence

supports the BIA’s denial on this basis. See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010).

3 Substantial evidence also supports the BIA’s conclusion that Chic Bate

failed to show any nexus to a protected ground as a result of the death threat he

received from his cousin Geronimo. Substantial evidence supports the BIA’s

conclusion that Chic Bate “failed to show the harm he fears would be motivated by

anything more than personal animosity,” as the record indicates that Geronimo’s

motive to harm Chic Bate stems from his connection to a family inheritance and

the fact that he reported Geronimo to the police for killing their grandfather. See

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (“Purely personal

retribution is . . . not persecution on account of a” protected ground).

PETITION DENIED.