Maria Rodriguez Mosqueda v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2022
• Docket: 19-72728
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARIA GUADALUPE RODRIGUEZ No. 19-72728 MOSQUEDA; ALEXA VIANNEY AGUILAR RODRIGUEZ, Agency Nos. A209-163-940 A209-163-941 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 16, 2022** San Francisco, California

Before: McKEOWN and W. FLETCHER, Circuit Judges, and BENNETT,*** District Judge.

* 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Maria Guadalupe Rodriguez Mosqueda and her daughter, Alexa Vianney

Aguilar Rodriguez, petition for review of the Board of Immigration Appeals’s

(“BIA”) dismissal of their appeal from an Immigration Judge’s (“IJ”) denial of

their applications for asylum, withholding of removal, and protection under the

Convention Against Torture. In Mexico, Rodriguez witnessed the shooting of two

of her cousins, though she did not see the shooter’s face. A week later, she

received threatening text messages from someone who claimed to be the shooter.

Neither she nor her daughter was further harmed.

The IJ denied Rodriguez’s applications for asylum and withholding of

removal because she had not established that she had experienced past persecution

in Mexico. Further, Rodriguez had not demonstrated “an objective, well-founded

fear of future persecution” because the asserted threat of future persecution did not

extend to all locations in Mexico, and because most of her family members

continue to reside safely in Mexico.

The BIA dismissed Rodriguez’s appeal by “adopt[ing] and affirm[ing]” the

IJ’s decision. It agreed that Rodriguez could reasonably relocate to another area of

Mexico. It also found that any error committed by the IJ in not asking Rodriguez

to designate the proposed particular social group she claimed membership in was

“harmless.”

2 We have jurisdiction to review Rodriguez’s petition for review under 8

U.S.C. § 1252(a)(1).

To be eligible for asylum, a petitioner “must demonstrate that she ‘is unable

or unwilling’ to return to [her country of nationality] ‘because of persecution or a

well-founded fear of persecution’” on account of a statutorily protected ground.

Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). “If a petitioner demonstrates that she has suffered past

persecution, ‘then fear of future persecution is presumed.’” Id. (quoting Deloso v.

Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005)).

The IJ’s finding that Rodriguez did not establish past persecution is

supported by substantial evidence. Rodriguez and her daughter were not harmed in

Mexico. As evidence of past persecution, Rodriguez introduced the threatening

text messages she received from her cousin’s shooter. However, “[o]ur court

generally treats unfulfilled threats, without more, as within that category of

conduct indicative of a danger of future persecution, rather than as past

persecution itself.” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (emphasis

added); see also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019)

(limiting cases where death threats alone can constitute persecution to “a small

category of cases”).

3 In the absence of a presumption of fear of future persecution, an applicant

for asylum “must establish a well-founded fear of future persecution by showing

both a subjective fear of future persecution, as well as an objectively reasonable

possibility of persecution upon return to the country in question.” Duran-

Rodriguez, 918 F.3d at 1029 (internal quotation marks omitted). But an applicant

“does not have a well-founded fear of persecution if the applicant could avoid

persecution by relocating to another part of the applicant’s country of nationality

. . . [and] under all the circumstances it would be reasonable to expect the applicant

to do so.” 8 C.F.R. § 1208.13(b)(2)(ii).

Rodriguez does not challenge in this court the BIA’s finding that she can

relocate within Mexico. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259

(9th Cir. 1996) (holding that issues not addressed in a petitioner’s opening brief are

waived); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Even if a

challenge to the reasonable relocation finding were not waived, we would conclude

that the finding is supported by substantial evidence. “An applicant’s claim of

persecution upon return is weakened, even undercut, when similarly-situated

family members continue to live in the country without incident.” Hakeem v. INS,

273 F.3d 812, 816 (9th Cir. 2001), superseded by statute on other grounds as

stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).

4 Almost the entirety of Rodriguez’s family continues to reside safely in Mexico.

The BIA’s finding on Rodriguez’s withholding of removal application is

supported by substantial evidence for the same reason. See 8 C.F.R.

§ 1208.16(b)(2), (b)(3) (requiring proof that reasonable relocation is not possible

for successful withholding of removal application).

Rodriguez does not challenge in this court the BIA’s ruling on her

application for protection under CAT, waiving the issue. See Martinez-Serrano,

94 F.3d at 1259; Greenwood, 28 F.3d at 977.

PETITION DENIED.