Medina Rodales v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2024
• Docket: 22-1238
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2024 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

MARIA DE LOS ANGELES MEDINA No. 22-1238 RODALES; XOCHITL GUADALUPE Agency Nos. CERVANTES MEDINA, A206-912-468 A206-912-469 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 12, 2024** San Francisco, California

Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.

Maria De Los Angeles Medina Rodales and her minor daughter, natives and

citizens of Mexico, petition for review of the Board of Immigration Appeals’

* 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). (BIA) order dismissing their appeal of an immigration judge’s (IJ) order denying

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

Convention Against Torture (CAT). When, as here, the BIA adopts and affirms

the IJ’s decision by citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and

offers additional reasoning, the court reviews both decisions. Husyev v. Mukasey,

528 F.3d 1172, 1177 (9th Cir. 2008). We “review legal conclusions de novo” and

“review for substantial evidence factual findings underlying the BIA’s

determination that a petitioner is not eligible for asylum, withholding of removal,

or CAT relief.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).

We assume the parties’ familiarity with the facts and recite them only as necessary.

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

Petitioner correctly points out that the IJ’s analysis of her proposed

particular social group—immediate family member of cartel member or organized

crime participant—includes a citation to the Attorney General’s now-vacated

decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), vacated by Matter of

A-B-, 28 I. & N. Dec. 307 (A.G. 2021). However, substantial evidence supports

the agency’s other, independent bases for denying Petitioner’s applications for

asylum and withholding of removal. The record does not compel a finding that

Petitioner faced past persecution or has a well-founded fear of future persecution

because Petitioner testified that she was never directly threatened with harm and

2 22-1238 that she did not believe that anyone wanted to harm her or her daughter in

particular. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005)

(concluding that the record did not compel a finding of persecution where the

petitioner received threats that were “anonymous, vague, and did not create a sense

of immediate physical violence”). The record also does not compel a finding that

Petitioner’s brother’s ties to the cartel were “one central reason,” or even “a

reason,” that Petitioner faced or will face harm. Barajas-Romero v. Lynch, 846

F.3d 351, 360 (9th Cir. 2017) (explaining the nexus standards for asylum and

withholding of removal, respectively).

We deem unexhausted Petitioner’s arguments that the agency ignored

evidence of psychological torture when it analyzed her CAT claim and that the IJ,

after this case was reassigned to him, denied Petitioner due process by issuing a

decision on her applications after a four-year delay and without hearing new

testimony. Petitioner did not raise these arguments before the BIA, and the

Attorney General properly raises Petitioner’s failure to administratively exhaust

them. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023); see also

Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (recognizing that a

petitioner must exhaust challenges to “procedural errors, constitutional or

otherwise, that are correctable by” the agency (citation omitted)).

PETITION DENIED.

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