Juan Juarez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 23, 2023
• Docket: 22-625
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIAS JUAN JUAREZ; RICARDO No. 22-625 MONTUFAR TOMAS JUAN; DOMINGO Agency Nos. WILFREDO JUAN, A208-605-696 A208-605-697 Petitioners, A208-605-698 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 16, 2023** San Francisco, California

Before: SILER, NGUYEN, and R. NELSON, Circuit Judges.***

Petitioners Elias Juan Juarez (“Elias”) and her two children, Ricardo and

* 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 Eugene E. Siler, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. Domingo, request asylum in the United States, withholding of removal, Convention

Against Torture (“CAT”) protection, and petition for review of an order of the Board

of Immigration Appeals (“BIA”). All three Petitioners are from the Kanjobal ethnic

group in Guatemala and believe that their ethnicity, combined with violent threats

from the children’s father, Esteban, make them eligible for asylum. The Immigration

Judge (“IJ”) and Board of Immigration Appeals (collectively, “the agency”)

disagreed and denied the petitions, finding that they failed to allege a protected social

group, that they failed to show a nexus between their protected social group and the

harm endured, and that the Guatemalan government was not implicated in their

treatment. We agree with the agency and deny the petitions.

This court reviews the agency’s decisions under the substantial evidence

standard. Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir. 2023). Legal

questions are reviewed de novo. Id.

1. Petitioners argue that the removal proceedings against Elias and her family

were “never initiated” because the Notice to Appear (“NTA”) did not include the

date, time, and place of the hearing as required by 8 U.S.C. § 1229(a)(1)(G)(i). This

court has already addressed a challenge to an NTA that failed to include the date and

time of the removal proceedings and found that even though the federal statute

requires the date and time to be included, that provision only concerns notice to the

respondent, not jurisdiction. United States v. Bastide-Hernandez, 39 F.4th 1187,

2 22-625 1192 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023).

2. Petitioners claim that the agency erred in determining that Elias failed to show

she is a member of a protected social group (“PSG”), failed to show a nexus between

the harms she alleges and any protected category, and failed to show that the

Guatemalan government could not or would not protect her.

Petitioners must show that Elias’ PSG (1) “share[s] a common immutable

characteristic,” (2) can be defined with particularity, and (3) is socially distinct.

Villegas Sanchez v. Garland, 990 F.3d 1173, 1180 (9th Cir. 2021). Elias claims that

her PSG is “a group of Guatemalan Kanjobal women living in the Kanjobal area

who have been subjected to domestic violence and will not be protected by the

Guatemalan government.” The agency found that to the extent the petitioner’s

proposed group is defined by the harm suffered by members of the proposed group,

it is impermissibly circular. Additionally, the petitioner failed to present evidence of

where the Kanjobal area is or if Kanjobal women were perceived by Guatemalan

society as distinct. We therefore affirm the agency’s ruling that the petitioner did

not show enough evidence to establish a distinct PSG. Additionally, the petitioner

did not present evidence that she was targeted on account of her protected ground.

Rodriguez-Zuniga, 69 F.4th at 1018.

Finally, Elias failed to show that the Guatemalan government could not or

would not protect her from Esteban despite her failure to report the incidents. She

3 22-625 must prove that the harms she suffered were inflicted “by the government or forces

the government is either unable or unwilling to control.” Chand v. I.N.S., 222 F.3d

1066, 1073 (9th Cir. 2000) (quotations omitted). While she is not required to report

incidents in order to carry that burden, Bringas-Rodriguez v. Sessions, 850 F.3d

1051, 1069 (9th Cir. 2017), she must justify such a failure by more than a mere

subjective belief that they would not help. See Castro-Perez v. Gonzales, 409 F.3d

1069, 1072 (9th Cir. 2005). The petitioner did not present sufficient evidence that

the Guatemalan police would have been unwilling or unable to protect her from

Esteban. See Id. at 1071-72.

3. Finally, Petitioners waived their appeal of the agency’s denial of CAT

protection. Although they mention the agency’s CAT decision in the factual

recitations of their opening brief, they entirely neglected any argument on the issue.

We “will not ordinarily consider matters on appeal that are not specifically and

distinctly argued in appellant's opening brief.” Kim v. Kang, 154 F.3d 996, 1000 (9th

Cir. 1998); see also Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008)

(declining to take up CAT protection issue when appellant had “not advanced any

arguments in support of his claim”).

The petitions for review are DENIED.

4 22-625