MARLON MONROY LINAREZ V. MERRICK GARLAND

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2022
• Docket: 18-73112
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLON MONROY LINAREZ, No. 18-73112

Petitioner, Agency No. A206-699-988

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

Respondent.

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

Submitted November 16, 2022** Pasadena, California

Before: NGUYEN and FORREST, Circuit Judges, and FITZWATER,*** 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 Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Marlon Monroy Linarez, a citizen of El Salvador, seeks review of the Board

of Immigration Appeals’ (BIA) decision denying him asylum and withholding of

removal. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

“Where the BIA conducts its own review of the evidence and law, rather than

adopting the [immigration judge’s (IJ)] decision, our review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v. Barr,

974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d 1164,

1169 (9th Cir. 2012)).

1. Due Process. Monroy Linarez argues that the agency violated due

process by failing to consider probative evidence of his persecutors’ motives. We

review this claim de novo. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th

Cir. 2000). A petitioner alleging “that the [BIA] violated his right to due process by

failing to consider relevant evidence must overcome the presumption that [the BIA]

did review the evidence.” Id. at 1095–96. Monroy Linarez has not done so. The

agency did consider the evidence at issue, and Monroy Linarez mischaracterizes the

agency’s treatment of this evidence. His due process claim therefore lacks merit.

Further, the record establishes that substantial evidence supports the agency’s nexus

finding, discussed further below. Thus, his claim lacks merit for this additional

reason. See Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir. 2018).

2 2. Agency’s legal analysis. Monroy Linarez argues that the agency erred

by requiring “evidence of an affirmative declaration from the persecutors of the

reasons for the persecution.” This court reviews questions of law de novo, including

whether the agency applied the correct legal standard. See Garcia v. Wilkinson, 988

F.3d 1136, 1146 (9th Cir. 2021). While circumstantial evidence may sufficiently

establish nexus, the petitioner still needs to provide “some evidence” of his

persecutors’ motive. Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (quoting INS

v. Elias-Zacarias, 502 U.S. 478, 483 (1992)). Monroy Linarez’s evidence of the MS-

13 members’ motive was generally unconnected to his harm. He provided evidence

that MS-13 wanted to recruit him because of his leadership abilities. His mother

submitted a declaration stating “[w]e were not sure how much the gang knew about

Marlon and our family.” The agency did not “require” Monroy Linarez to prove that

the MS-13 members stated why they targeted him. Rather, it partially relied on the

lack of any mention by the gang members of his family, politics, or religion as

evidence supporting its conclusion that Monroy Linarez failed to establish nexus to

these protected grounds. This was not error.

Monroy Linarez also argues that the agency applied an incorrect nexus

standard to his withholding of removal claim. We reject this assertion because the

BIA applied the correct standard and did not err. See Ghaly v. INS, 58 F.3d 1425,

3 1430 (9th Cir. 1995) (“Any error committed by the IJ will be rendered harmless by

the Board’s application of the correct legal standard.”).

3. Nexus. The agency’s nexus determination is reviewed for substantial

evidence. Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021). Under this

deferential standard, the agency’s decision stands “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)). Substantial evidence supports the agency’s nexus conclusion. A

reasonable adjudicator would not be compelled to find a nexus where Monroy

Linarez failed to provide any evidence—direct or circumstantial—linking the MS-

13 members’ actions to his religious beliefs, politics, or family membership. His

mother’s declaration testimony indicated Monroy Linarez’s family was unsure how

much MS-13 knew about them, and Monroy Linarez provided evidence that MS-13

may have targeted him for recruitment for his leadership abilities.

PETITION DENIED.