Jose Lisama Rivera v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 26, 2021
• Docket: 17-72360
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE NOEL LISAMA RIVERA, No. 17-72360

Petitioner, Agency No. A200-068-462

v. MEMORANDUM* ROBERT M. WILKINSON, Acting 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: GOULD and R. NELSON, Circuit Judges, and COGAN,** District Judge.

Jose Noel Lisama Rivera (“Lisama”), a native and citizen of El Salvador,

petitions for review of the decision by an immigration judge (“IJ”) affirming an

asylum officer’s negative reasonable fear determination. We have jurisdiction

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. In 2005, Lisama was ordered removed in absentia when he failed to appear

for a removal hearing. He was removed in 2013 but then reentered the United

States that same year. When the Department of Homeland Security recommended

reinstatement of the order of removal in 2017, Lisama expressed a fear of

persecution if he were returned to El Salvador, and he was referred to an asylum

officer. The asylum officer found that Lisama credibly testified as to past harm

and threats and his fear of future harm and threats rising to the level of persecution,

but that neither was on account of a protected ground. The IJ upheld the asylum

officer’s findings, concluding that Lisama was targeted for extortion by a gang that

believed he had money after his return to the United States, and that this harm did

not implicate a protected ground.

Substantial evidence supports the IJ’s determination that there is no nexus

between the past harm Lisama faced in El Salvador and a protected ground.

Lisama was targeted by gang members because they perceived him to have money,

which is not targeting based on a protected ground. Bartolome v. Sessions, 904

F.3d 803, 814 (9th Cir. 2018). He was also targeted because gang members

thought that he had encouraged a rival gang to attack them, but this type of

personal vendetta does not satisfy the requisite nexus. Molina-Morales v. INS, 237

F.3d 1048, 1051–52 (9th Cir. 2001).

Substantial evidence also supports the IJ’s determination that the harm

2 Lisama fears if he is returned to El Salvador would not be on account of a

protected ground. Lisama argues that the IJ failed to consider his claim of

persecution on account of membership in his family group. Persecution on account

of “membership in a particular social group” is persecution on account of a

protected ground, see 8 C.F.R. § 208.31(c), and “the family remains the

quintessential particular social group,” Rios v. Lynch, 807 F.3d 1123, 1128 (9th

Cir. 2015). But a nexus is not established simply because a family group exists

and its members experience harm; for there to be a nexus between the persecution

and a protected ground, the family group membership itself must constitute a

reason motivating the persecution. See Parada v. Sessions, 902 F.3d 901, 910 (9th

Cir. 2018); Rios, 807 F.3d at 1128.

Lisama fears that gang members will target him because he fled El Salvador

rather than pay their extortion, and to prevent him from seeking revenge for the

harm they caused his family. As described above, extortion and threats of violence

for economic reasons or personal vendetta alone do not satisfy the requisite nexus

if not also based on a protected characteristic. See Ayala v. Sessions, 855 F.3d

1012, 1015, 1020–21 (9th Cir. 2017); Molina-Morales, 237 F.3d at 1051–52.

Lisama testified that gang members have killed, attacked, and threatened multiple

members of his family due to their relationship to him. But his belief that gang

members may target him because they may think that he wants revenge is too

3 speculative to constitute harm on account of family group membership. Further,

although Lisama’s family members might have a viable claim that they were

targeted because of their relationship to him, the threat of future harm to Lisama is

on account of the gang’s personal vendetta against him, rather than membership in

a family social group.

Lisama’s next point of error argues that the Immigration Court lacked

jurisdiction to issue the underlying removal order because the Form I-682 Notice

to Appear did not list the date, time, and location of his hearing. We have

jurisdiction to consider Lisama’s claim of a gross miscarriage of justice in the

proceedings for his underlying removal order. Vega-Anguiano v. Barr, 942 F.3d

945, 947 (9th Cir. 2019). But this Court recently held that the lack of time, date,

and place in a Notice to Appear does not deprive the Immigration Court of

jurisdiction so long as a complete notice is provided at some point. Aguilar

Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020).

For the first time at oral argument, Lisama asserted that he never received a

complete notice of the hearing. The underlying removal order states that notice of

the hearing was not provided because Lisama failed to provide his address as

required after having been informed of that requirement in the Notice to Appear,1

1 For removal proceedings, no written notice is required if the alien failed to provide the required address. 8 U.S.C. § 1229a(b)(5)(B); Velasquez-Escovar v. Holder, 768 F.3d 1000, 1004 (9th Cir. 2014).

4 but Lisama contends that he told government officials where he could be reached.

Lisama has never challenged the underlying removal order in any administrative

proceeding, despite there being avenues for him to challenge his removal based on

lack of notice. See Cuenca v. Barr, 956 F.3d 1079, 1086 (9th Cir. 2020) (noting

that section 1229a(b)(5)(C)(ii) provides a potential avenue of relief for aliens

seeking “rescission of a removal order entered in absentia based on a claim of lack

of notice”). Because this claim was never presented in an administrative

proceeding below, we will not reach its merits here. See Garcia v. Lynch, 786 F.3d

789, 792–93 (9th Cir. 2015).

PETITION DENIED.