Luis Maldonado Barrios v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 2022
• Docket: 16-73437
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS MALDONADO BARRIOS, No. 16-73437

Petitioner, Agency No. A094-380-556

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 28, 2022** San Francisco, California

Before: M. MURPHY,*** GRABER, and OWENS, Circuit Judges.

Luis Maldonado Barrios, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision summarily

* 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 Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. affirming the immigration judge’s (“IJ”) decision denying his applications for

withholding of removal and protection under the Convention Against Torture

(“CAT”). Where, as here, the BIA summarily affirms the IJ and cites Matter of

Burbano, 20 I. & N. Dec. 872 (BIA 1994), “we review the IJ’s decision as if it

were the BIA’s.” Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008). We

review the agency’s factual determinations for substantial evidence, and we will

not reverse unless the evidence compels a contrary conclusion. Sanjaa v. Sessions,

863 F.3d 1161, 1164 (9th Cir. 2017). As the parties are familiar with the facts, we

do not recount them here. We dismiss in part and deny in part the petition.

1. Maldonado Barrios’ CAT claim is unexhausted and must be dismissed

for lack of jurisdiction. See Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir.

2019) (per curiam) (“Exhaustion . . . is jurisdictional and therefore generally bars

us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim

not presented in administrative proceedings below.” (citation and internal

quotation marks omitted)). Claims are exhausted before the BIA when the agency

has “notice of what was being challenged” and an “opportunity to pass” on the

contested issues. Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (citations

omitted). A general or conclusory challenge is insufficient because it “does not

apprise the BIA of the particular basis for [petitioner]’s claim.” Rizo v. Lynch, 810

F.3d 688, 692 (9th Cir. 2016). In his brief to the BIA, Maldonado Barrios

2 cursorily mentioned that he was appealing the IJ’s denial of CAT relief, but did not

make any arguments as to the relevant issues. This conclusory challenge is

insufficient for exhaustion, and we therefore dismiss the petition as to the CAT

claim.

2. Contrary to the government’s contention, Maldonado Barrios’ claim for

withholding of removal was exhausted before the BIA. While Maldonado Barrios’

arguments regarding withholding were undeveloped in his brief to the BIA, they

referenced the specifics of his case and were sufficient to “apprise the BIA of the

particular basis” for his claim: the alleged errors as to particular social group

membership, likelihood of future persecution, and nexus. Rizo, 810 F.3d at 692;

see also Bare, 975 F.3d at 960 (“[T]he petitioner may raise a general argument in

the administrative proceeding and then raise a more specific legal issue on

appeal.”).

As to the merits, to qualify for withholding of removal, “the applicant must

demonstrate that it is ‘more likely than not that he or she would be persecuted on

account of race, religion, nationality, membership in a particular social group, or

political opinion upon removal to [the country in question].’” Silva v. Garland,

993 F.3d 705, 719 (9th Cir. 2021) (quoting 8 C.F.R. § 1208.16(b)(2)).

Substantial evidence supports the IJ’s conclusion that Maldonado Barrios

failed to show a clear probability of persecution. Persecution is an “extreme

3 concept,” Kaur v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021) (citation

omitted), and none of the past harm Maldonado Barrios has faced qualifies. See

Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir. 2022) (holding that a

series of robberies including a detention and beating did not constitute

persecution); Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021) (holding that

evidence that the petitioner was detained and beaten by police for 18–19 hours did

not compel a finding of past persecution). Without evidence of an individualized

threat to Maldonado Barrios himself, the evidence of a general atmosphere of

crime and violence in Guatemala does not compel the conclusion that he

established eligibility for withholding. See Sharma, 9 F.4th at 1063.

Further, substantial evidence supports the IJ’s conclusion that there is no

nexus between the harm Maldonado Barrios fears and a statutorily protected

ground. Maldonado Barrios must show that his membership in a particular social

group is “a reason” for the claimed persecution. Barajas-Romero v. Lynch, 846

F.3d 351, 360 (9th Cir. 2017). Maldonado Barrios testified that the police singled

him out on the bus in 1999 because of his long hair, and he otherwise cannot

identify who has harmed his family members or why. His suspicions that gang

members target landowners like him and his family because the gangs believe that

landowners are in a position to pay extortions are not unreasonable, but those

suspicions do not compel reversal of the IJ’s no-nexus finding.

4 Because substantial evidence supports the agency’s conclusions as to

persecution and nexus, we need not address whether the IJ erred in failing to

recognize Maldonado Barrios’ membership in a particular social group.

PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN

PART.