Martinez-De Calderon v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 23-3845
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELSA NOHEMY MARTINEZ-DE No. 23-3845 CALDERON; MELANIE MICHELLE Agency Nos. MARTINEZ-CALDERON; JIMMY A220-680-248 ANTONIO CALDERON-MARTINEZ, A201-445-026 A220-676-710 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2024** Seattle, Washington

Before: BOGGS***, McKEOWN, and R. NELSON, Circuit Judges.

Elsa Nohemy Martinez-De Calderon, a native and citizen of El Salvador,

* 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 Danny J. Boggs, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of

her, and her two minor children’s, appeal of the Immigration Judge’s (“IJ”) denial

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

Convention Against Torture (“CAT”). Martinez-De Calderon is the lead applicant,

and her two minor children are derivative applicants on her asylum request.

Because the parties are familiar with the facts, we need not recount them

here. We have jurisdiction under 8 U.S.C. § 1252. Our review is limited to the

BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.

Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). Reviewing legal

conclusions de novo and factual findings for substantial evidence, Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), we deny the

petition. A temporary stay of removal remains in place until the mandate issues,

and the motion for a stay of removal is otherwise denied.

An applicant for asylum must demonstrate that she is “unable or unwilling to

return to [her] home country because of a well-founded fear of future persecution

on account of” a protected ground. Udo v. Garland, 32 F.4th 1198, 1206 (9th Cir.

2022) (internal quotations omitted). Martinez-De Calderon “has the burden of

establishing that (1) [her] treatment rises to the level of persecution; (2) the

persecution was on account of one or more protected grounds; and (3) the

persecution was committed by the government, or by forces that the government

2 23-3845 was unable or unwilling to control.” Guo v. Sessions, 897 F.3d 1208, 1213 (9th

Cir. 2018) (internal quotations omitted).

Substantial evidence supports the BIA’s conclusion that Martinez-De

Calderon had not suffered past persecution or established a well-founded fear of

future persecution. Although Martinez-De Calderon alleged she received

“harassment and threats” from gang members, witnessed severe gang violence, and

feared that “gang members would come to [her] home and kidnap Jimmy,” these

experiences do not rise to the “extreme concept” of persecution. Sharma v.

Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). For future persecution, “[t]he

ongoing safety of family members in the petitioner’s native country undermines a

reasonable fear of future persecution.” Sharma, 9 F.4th at 1066. Martinez-De

Calderon’s mother continues to live safely in El Salvador, and gangs have shown

no interest in her. Martinez-De Calderon has not identified other evidence

reflecting the gang’s “continuing interest” in her persecution. See Zhang v.

Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004).

Because “[w]ithholding’s clear-probability standard is more stringent than

asylum’s well-founded-fear standard,” a failure to establish eligibility for asylum

necessitates a failure to establish eligibility for withholding of removal. Singh v.

Garland, 57 F.4th 643, 658 (9th Cir. 2022) (internal quotations and citation

omitted).

3 23-3845 Substantial evidence also supports the denial of CAT relief. Torture “is an

extreme form of cruel and inhuman treatment and does not include lesser forms of

cruel, inhuman or degrading treatment or punishment.” 8 C.F.R. § 1208.18(a)(2).

“Demonstrating torture requires a much greater showing of harm than

demonstrating persecution, itself ‘an extreme concept.’” Hernandez v. Garland, 52

F.4th 757, 769 (9th Cir. 2022) (quoting Sharma, 9 F.4th at 1060). The BIA did not

err in concluding that Martinez-De Calderon’s experiences did not rise to the

extreme level of torture. 8 C.F.R. § 1208.18(a)(2); see Lopez v. Sessions, 901 F.3d

1071, 1078 (9th Cir. 2018). Martinez-De Calderon did not submit any additional

evidence supporting likely future torture.

Finally, Martinez-De Calderon did not exhaust her due-process claim, which

was not raised before the BIA. Because she contends she was denied a full and fair

hearing, her due-process claim is subject to the exhaustion requirement. Agyeman

v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (citation omitted). Although exhaustion

is not jurisdictional, it is nevertheless a mandatory claims-processing rule to be

enforced when properly invoked. See Santos-Zacaria v. Garland, 598 U.S. 411,

416–18, 423 (2023). The government has properly raised the issue, and we will not

consider the claim further. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th

Cir. 2023), as amended.

PETITION DENIED.

4 23-3845