Lopez Tomas De Pedro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2024
• Docket: 22-656
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS LORENZA LOPEZ TOMAS DE PEDRO; No. 22-656 et al., Agency Nos. A208-605-647 Petitioners, A208-605-648 A208-605-649 v.

MERRICK B. GARLAND, Attorney ORDER General,

Respondent.

Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.

Petitioners’ petition for panel rehearing is granted. The memorandum

disposition filed on September 22, 2023, is withdrawn. A replacement

memorandum disposition is being filed concurrently with this order.

Any further petition for rehearing is due 45 days from the date of this order. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LORENZA LOPEZ TOMAS DE No. 22-656 PEDRO; et al., Agency Nos. A208-605-647 Petitioners, A208-605-648 A208-605-649 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

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

Submitted January 4, 2024**

Lorenza Lopez Tomas de Pedro and her two minor children, natives and

citizens of Guatemala, petition pro se for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”)

* 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). decision denying their applications for asylum, withholding of removal, and

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

under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We

review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92

(9th Cir. 2005). We deny in part and grant in part the petition for review, and

remand.

Substantial evidence supports the agency’s determination that petitioners

failed to establish they were or would be persecuted on account of a protected

ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’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”). Thus,

petitioners’ asylum claims fail. Because petitioners failed to establish any nexus at

all, they also failed to satisfy the standard for withholding of removal. See

Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017).

In light of this disposition, we need not reach the remaining contentions

regarding the merits of petitioners’ asylum and withholding of removal claims.

See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies

are not required to decide issues unnecessary to the results they reach).

2 22-656 Substantial evidence also supports the agency’s denial of CAT protection

because petitioners failed to show it is more likely than not they will be tortured by

or with the consent or acquiescence of the government if returned to Guatemala.

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The record does not support petitioners’ contentions that the IJ or BIA failed

to consider evidence or otherwise erred in the analysis of their claims. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency adequately

considered evidence and sufficiently announced its decision); see also Lata v. INS,

204 F.3d 1241, 1246 (9th Cir. 2000) (error required to prevail on a due process

claim).

Petitioners’ contention that the IJ failed to examine the children’s claims

from the “perspective of a child” is not properly before the court because it was not

raised before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative

remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19

(2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule).

As to voluntary departure, we remand for the agency to determine

petitioners’ eligibility in light of our intervening decision in Posos-Sanchez v.

Garland. 3 F.4th 1176, 1185 (9th Cir. 2021) (statutorily deficient notice to appear

does not trigger the voluntary departure stop-time provision); see also INS v.

Ventura, 537 U.S. 12, 16-18 (2002); Vasquez-Rodriguez v. Garland, 7 F.4th 888,

3 22-656 896 (9th Cir. 2021) (exhaustion not required where resort to the agency would be

futile); Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004) (“We do not require an

alien to exhaust administrative remedies on legal issues based on events that occur

after briefing to the BIA has been completed.”).

Each party must bear its own costs for this petition for review.

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

4 22-656