Maria Vanegas-Delgado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2023
• Docket: 15-73478
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 12 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA JOSE VANEGAS-DELGADO, No. 15-73478 AKA Maria Jose Vanegas, Agency No. A205-719-405 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 10, 2023** Pasadena, California

Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.

Petitioner Maria Jose Vanegas-Delgado, a native and citizen of Nicaragua,

seeks review of the Board of Immigration Appeals’ (“BIA”) dismissal of her

appeal from the order of an Immigration Judge (“IJ”) denying her application for

* 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). withholding of removal and protection under the United Nations Convention

Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and

we deny the petition.

Petitioner entered the United States without inspection in August 2005,

about a year after her brother disappeared in a presumed kidnapping by unknown

individuals.1 Following her brother’s disappearance, Petitioner received

anonymous phone calls from two individuals trying to extort her for money in

exchange for information about the whereabouts of her brother. In a declaration

submitted to the IJ, Petitioner explained that while her family’s agricultural fortune

was substantially destroyed when the Sandinista National Liberation Front

(“SNLF”) took power in 1979, her family is still perceived as wealthy. She also

stated that she has been the victim of at least two robberies and that, because of her

opposition to the SNLF, she would have difficulty finding work if removed to

Nicaragua. At her hearing before the IJ, Petitioner testified that one of her sisters

and her grandmother continue to live safely in Nicaragua and have not been

harassed, threatened, or extorted for money.

The government initiated removal proceedings in 2013. Petitioner conceded

1 Petitioner testified that she filed a police report after her brother’s disappearance, but there have been no developments.

2 removability and applied for withholding of removal and protection under CAT.2

She fears future persecution based on her membership in her family, her imputed

opposition to the SNLF, and her membership in the putative social group of

“women of perceived wealth.” The agency found Petitioner credible, but denied

relief because Petitioner failed to establish: (1) past harm rising to the level of

persecution or a reasonable fear of future persecution; (2) a nexus between her

alleged persecution and a protected ground; and (3) involvement of Nicaraguan

government officials or forces the government is unwilling or unable to control.

Where, as here, “the BIA ‘has reviewed the IJ’s decision and incorporated

portions of it as its own, we treat the incorporated parts of the IJ’s decision as the

BIA’s.’” Maie v. Garland, 7 F.4th 841, 845 (9th Cir. 2021) (quoting Molina-

Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002)). “Thus, we refer to the [BIA]

and IJ collectively as ‘the agency.’” Medina-Lara v. Holder, 771 F.3d 1106, 1111

(9th Cir. 2014). The agency’s findings of fact are reviewed for substantial

evidence and its conclusions of law are reviewed de novo. Plancarte Sauceda v.

Garland, 23 F.4th 824, 831 (9th Cir. 2022).

1. Substantial evidence supports the agency’s determination that Petitioner is

not eligible for withholding of removal. First, the agency permissibly concluded

that Petitioner did not suffer persecution in the past and is not more likely than not

2 Petitioner conceded that she is time-barred from applying for asylum.

3 to face persecution in the future. See Aden v. Wilkinson, 989 F.3d 1073, 1086 (9th

Cir. 2021). Anonymous phone calls, without more, do not rise to the level of

persecution, particularly when they are not accompanied by a specific threat of

physical violence. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.

2019); Sharma v. Garland, 9 F.4th 1052, 1062 (9th Cir. 2021). And the record

does not indicate that the disappearance of Petitioner’s brother was related to his

membership in the family or that Petitioner faces significant danger related to the

kidnapping. See Sharma, 9 F.4th at 1062 (“[A]lthough harm to a petitioner’s close

relatives . . . may contribute to a successful showing of past persecution, it must be

part of a pattern of persecution closely tied to [the petitioner herself].” (internal

quotation marks omitted)). Nor does difficulty finding employment due to her

political affiliation rise to the level of persecution, especially because the country

reports that Petitioner submitted indicate only that party membership is required

for public-sector employment. See Nagoulko v. Immigr. & Naturalization Serv.,

333 F.3d 1012, 1016–17 (9th Cir. 2003).

Moreover, substantial evidence supports the determination that Petitioner

has not established a sufficient nexus between her harm and a protected

characteristic. To be eligible for withholding of removal, an applicant must in part

“demonstrate that a protected characteristic would be ‘a reason’ for future

persecution.” Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (internal

4 citation omitted). There is no evidence that the disappearance of Petitioner’s

brother, the anonymous phone calls she received, or the robberies she experienced

were related to Petitioner’s family’s status or her opposition to the SNLF. And the

fact that Petitioner’s sister and grandmother continue to live safely in Nicaragua

supports the agency’s conclusion that any harm Petitioner experienced was not tied

to her family status or political affiliations. Further, as the agency explained, the

proposed particular social group of “women of perceived wealth” is not “narrowly

defined” in terms of “immutability, cohesiveness, homogeneity, and visibility,” as

our caselaw requires. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir.

2010) (per curiam) (quoting Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir.

2009)). Accordingly, we deny the petition with respect to Petitioner’s withholding

of removal claim.

2. Substantial evidence also supports the agency’s determination that

Petitioner is not entitled to CAT protection. “To qualify for relief under CAT,” an

applicant “must establish it is more likely than not that he or she would be tortured

if returned to the proposed country of removal.” Diaz-Reynoso v. Barr, 968 F.3d

1070, 1089 (9th Cir. 2020). “Torture is ‘more severe than persecution.’” Davila v.

Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (quoting Guo v. Sessions, 897 F.3d

1208, 1217 (9th Cir. 2018)). Because Petitioner has not established a reasonable

fear of persecution, she has not demonstrated a likelihood of torture upon return to

5 Nicaragua.

3. Petitioner’s claim that the BIA violated her due process rights when it

affirmed the IJ’s decision lacks merit. There is nothing in the record that suggests

that Petitioner did not receive a full and fair hearing. See Gutierrez v. Holder, 662

F.3d 1083, 1091 (9th Cir. 2011).

PETITION DENIED.