Jimenez Rivera v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2024
• Docket: 23-742
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE ERNESTO JIMENEZ No. 23-742 RIVERA; SILVIA SERRANO AYALA, Agency Nos. A209-063-759 Petitioners, A209-063-760 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 20, 2024** San Francisco, California

Before: BRESS and VANDYKE, Circuit Judges, and LASNIK, District Judge.*** Jorge Ernesto Jimenez Rivera (Jimenez) and his wife, Silvia Serrano Ayala

(Serrano), both natives and citizens of El Salvador, petition for review of a Board of

* 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 Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Immigration Appeals (BIA) decision dismissing their appeal from an Immigration

Judge (IJ) order denying Jimenez’s applications for asylum, withholding of removal,

and protection under the Convention Against Torture (CAT).1

“Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874

(BIA 1994) and also provides its own review of the evidence and law, we review

both the IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479, 481 (9th

Cir. 2020) (internal quotation marks and alterations omitted). “We review the

agency’s factual findings for substantial evidence, but review ‘de novo both purely

legal questions and mixed questions of law and fact . . . .” Id. (quoting Mendoza-

Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012)). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

1. Substantial evidence supports the agency’s denial of asylum and

withholding of removal. To be eligible for asylum, Jimenez must demonstrate a

“likelihood of ‘persecution or a well-founded fear of persecution on account of race,

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

Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). To establish eligibility for withholding of removal, Jimenez

must show “that it is more likely than not” that he will be persecuted if returned to

1 Serrano is a derivative beneficiary of Jimenez’s application for asylum. Because her petition depends on her husband’s, we refer only to Jimenez.

2 23-742 El Salvador “because of” membership in a particular social group or other protected

ground. Barajas-Romero v. Lynch, 846 F.3d 351, 357, 360 (9th Cir. 2017); see also

8 U.S.C. § 1231(b)(3).

For both forms of relief, Jimenez must show a nexus between the feared harm

and a protected ground. Garcia v. Wilkinson, 988 F.3d 1136, 1143, 1146–48 (9th

Cir. 2021). For asylum, this requires showing that the protected ground will be “one

central reason” for the harm. 8 U.S.C. § 1158(b)(1)(B)(i). For withholding, Jimenez

must show that the protected ground will be “a reason” for the harm. Barajas-

Romero, 846 F.3d at 360. Attacks based on personal or pecuniary motives do not

meet the nexus requirement and do not provide a basis for asylum or withholding of

removal. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

In this case, substantial evidence supports the agency’s determination that

Jimenez failed to show a nexus between his past or feared future harm and an actual

or imputed political opinion. Jimenez claims that the gang members who threatened

him would have imputed an anti-gang political opinion to him because he filed

police reports after each of the 2012 car thefts. But, as the agency explained, there

is insufficient evidence that Jimenez had any particular political opinion or that one

would have been imputed to him. See Singh v. Holder, 764 F.3d 1153, 1159 (9th

Cir. 2014). The record does not compel a contrary conclusion. Further, there is

insufficient evidence to connect Jimenez’s carjacking reports to the threats he

3 23-742 received from gang members three years later.

Substantial evidence also supports the agency’s determination that Jimenez

failed to show a nexus between his past or feared harm and his membership in any

of his proposed particular social groups, even assuming they are cognizable.

Jimenez’s assumptions about the motivations of the car thieves and the gang

members who threatened him were speculative. Nor did Jimenez establish any

connection between these events. Substantial evidence supports the agency’s

determination that Jimenez’s claim is essentially premised on his fear of crime. But

“[a]n 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.” Zetino,

622 F.3d at 1016.

Because the lack of nexus is fatal to Jimenez’s asylum and withholding

claims, we do not reach his additional assignments of error.

2. Substantial evidence supports the denial of CAT relief. “‘The Convention

Against Torture provides mandatory relief for any immigrant who can demonstrate

that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.’” Andrade v. Garland, 94 F.4th 904, 914 (9th Cir.

2024) (quoting Gutierrez-Alm v. Garland, 62 F.4th 1186, 1200–01 (9th Cir. 2023));

see also 8 C.F.R. § 1208.16(c)(2).

In this case, substantial evidence supports the agency’s determination that

4 23-742 Jimenez has not shown that he would face a particularized risk of torture if returned

to El Salvador. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per

curiam) (“[T]he petitioner must demonstrate that he would be subject to a

‘particularized threat of torture . . . .’” (quoting Lanza v. Ashcroft, 389 F.3d 917,

936 (9th Cir. 2004))). And although Jimenez argues that the agency overlooked

certain evidence about the risk of torture he could face, he does not specifically

identify any record evidence that the agency ignored. Nor was the IJ’s reasoning

impermissibly cursory.

In short, neither the country condition reports nor any other evidence Jimenez

submitted compels the conclusion that Jimenez more likely than not will be tortured

by or with the acquiescence of the government if he is removed to El Salvador.

PETITION DENIED.2

2 Jimenez’s motion to stay removal, Dkt. 2, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 23-742