Maria Elizalde Esqueda v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2021
• Docket: 19-71973
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 10 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA ELISA ELIZALDE ESQUEDA, No. 19-71973

Petitioner, Agency No. A208-582-724

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 1, 2021** San Francisco, California

Before: SILER,*** RAWLINSON, and BUMATAY, Circuit Judges.

Petitioner Maria Elisa Elizalde Esqueda (Esqueda), a citizen of Mexico,

petitions for review of the decision of the Board of Immigration Appeals (BIA)

* 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 U.S. Court of Appeals for the Sixth Circuit, sitting by designation. dismissing her appeal of the denial of her application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT).

1. Substantial evidence supports the BIA’s denial of asylum. See Singh v.

Holder, 753 F.3d 826, 830 (9th Cir. 2014) (articulating the substantial evidence

standard for denial of asylum). An applicant for asylum “bears the burden of

proving eligibility for asylum and must demonstrate that [s]he has suffered past

persecution or has a well-founded fear of future persecution on account of race,

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

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citation omitted).

First, Esqueda failed to establish eligibility for asylum based on the abuse

she suffered from her father and ex-husband. Even if the abuse rose to the level of

persecution, Esqueda failed to establish a nexus to a protected ground. Although

“women in [Mexico]” may constitute a cognizable social group in certain

circumstances, Perdomo v. Holder, 611 F.3d 662, 668 (9th Cir. 2010), Esqueda

failed to establish that this identity motivated the abuse. In addition, because both

men are now deceased, the likelihood of future persecution from those sources is

nonexistent. See Singh, 753 F.3d at 830–31 (explaining that the presumption of a

well-founded fear of future persecution based on past persecution may be rebutted

by “a fundamental change in circumstances”).

2 Next, although rape may qualify as persecution, Esqueda again failed to

present sufficient evidence of her persecutors’ motive to establish a nexus to a

protected ground. See Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996).

Finally, the unfulfilled telephonic and written threats Esqueda received did

not rise to the level of past persecution. See Duran-Rodriguez, 918 F.3d at 1028

(noting that “threats alone, particularly anonymous or vague ones, rarely constitute

persecution”) (citation omitted).

2. Substantial evidence also supports the BIA’s denial of humanitarian

asylum because Esqueda failed to demonstrate that she suffered “atrocious” past

persecution on account of a protected ground, or a reasonable possibility that she

may suffer other serious harm upon removal to Mexico. See 8 C.F.R.

§ 1208.13(b)(1)(iii)(A)-(B); see also Singh v. Whitaker, 914 F.3d 654, 662 (9th

Cir. 2019) (“Humanitarian asylum based on past persecution may be granted where

the petitioner has suffered atrocious forms of persecution.”) (citation and internal

quotation marks omitted).

3. Because Esqueda failed to meet her burden of establishing eligibility for

asylum, she necessarily failed to meet the higher burden of proof required for

withholding of removal. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th

Cir. 2016).

3 4. Finally, substantial evidence supports the denial of CAT relief because

Esqueda failed to demonstrate that it is more likely than not she will be subjected

to torture if returned to Mexico. See Duran-Rodriguez, 918 F.3d at 1028

(reviewing CAT claim for substantial evidence). As the BIA noted, despite

receiving threats from unknown individuals demanding that she cease investigating

her son’s death, she continued to live and work in Mexico without being physically

harmed or confronted. See id. at 1029-30 (rejecting a similar claim).

PETITION DENIED.