Mercedes Linarez Zaldivar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2023
• Docket: 13-74375
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 24 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MERCEDES LINAREZ ZALDIVAR, No. 13-74375 AKA Mersedes Linarez Zaldivar, AKA Sara Oneyda, Agency No. A087-539-714

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 21, 2023** Pasadena, California

Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.

Mercedes Linarez Zaldivar (Linarez), a native and citizen of Honduras,

petitions for review of the Board of Immigration Appeals’ (BIA) decision

* 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). dismissing her appeal of the Immigration Judge’s (IJ) denial of asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). Linarez’s applications were based on past harm and fear of future harm on

account of her support for Manuel Zelaya, the former President of Honduras who

was forcibly removed in the 2009 coup d’état.

“Where the BIA affirms the IJ and also adds its own reasoning, we review

the decision of the BIA and those parts of the IJ’s decision upon which it relies.”

Salguero Sosa v. Garland, 55 F.4th 1213, 1217 (9th Cir. 2022) (citation and

internal quotation marks omitted). “We review legal questions de novo” and

“factual determinations . . . for substantial evidence.” Id. We have jurisdiction

pursuant to 8 U.S.C. § 1252 and we deny the petition.

The viability of Linarez’s petition largely hinges on whether her experiences

in Honduras constituted past persecution. “[T]he standard of review for past

persecution is currently unsettled. . . .” Antonio v. Garland, 58 F.4th 1067, 1072

n.8 (9th Cir. 2023); compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir.

2021) (reviewing de novo), with Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir.

2021) (applying the substantial evidence standard). But, “we need not address

whether de novo review should apply, or discuss the nuances of the two standards,

because the harm [Linarez] suffered” did not rise to the level of persecution under

2 either standard. Singh v. Garland, 57 F.4th 643, 652 (9th Cir. 2022), as amended

(citation and alteration omitted).

1. Linarez contends that the following events rose to the level of

persecution: (1) beating protestors with rubber sticks and using tear gas and water

hoses at a political protest she attended; (2) a passenger in a passing car pointing a

gun at her and looking at her in a “threatening manner”; and (3) armed men taking

her from her home against her will and threatening her. “[L]ooking at the

cumulative effect” of these incidents, we conclude that they do not rise to the level

of past persecution. Sharma, 9 F.4th at 1061–65 (citation omitted).

“Persecution is an extreme concept,” Aden v. Wilkinson, 989 F.3d 1073,

1082 (9th Cir. 2021) (citation and internal quotation marks omitted), evidenced by

“repeated, lengthy and severe harassment.” Gu v. Gonzales, 454 F.3d 1014, 1020

(9th Cir. 2006). Linarez’s kidnapping lasted approximately five minutes before

she escaped. See Prasad v. I.N.S., 47 F.3d 336, 339–40 (9th Cir. 1995) (holding

that a brief detention was insufficient to establish past persecution). Nor was there

any serious physical harm inflicted upon Linarez during the kidnapping or the

protests. See Sharma, 9 F.4th at 1061 (recognizing the repeated denial of petitions

“when, among other factors, the record did not demonstrate significant physical

harm”) (citations omitted). There was no evidence linking the incident with the

3 passing car to Linarez’s political opinion. And the death threats, without more,

ordinarily do not “require a finding of past persecution.” Aden, 989 F.3d at 1082

(citations omitted); Cf. Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir.

2005) (holding that a police officer bringing a loaded gun to a petitioner’s head and

threatening to pull the trigger while making negative comments about petitioner’s

sexuality was a death threat constituting persecution, and the IJ erred as a matter of

law by concluding otherwise).

2. Absent a showing of past persecution, Linarez was required to

establish “a well-founded fear of future persecution.” Sharma, 9 F.4th at 1065

(citation omitted). The fear “must be objectively reasonable.” Id. Linarez failed

to satisfy this standard. There is no evidence in the record that the people Linarez

fears have any continuing interest in her specifically. See Gu, 454 F.3d at 1022

(observing that the record did not compel the conclusion that the petitioner

established a well-founded fear of future persecution when the record was “devoid

of any evidence” that the alleged persecutors had any continuing interest in the

petitioner). The denial of asylum was supported by substantial evidence. See id. at

1019.

3. To qualify for withholding of removal, Linarez must demonstrate a

“clear probability” of persecution based on a protected ground. Sharma, 9 F.4th at

4 1059. This standard is “more stringent” than the well-founded fear standard for

asylum. Id. at 1066 (citation omitted). Because Linarez failed to satisfy the “lesser

burden” for asylum, her withholding of removal claim necessarily fails. Id. And

because the BIA concluded that there was no nexus to a protected ground, we need

not address the different nexus standards for asylum and withholding of removal.

See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1018 (9th Cir. 2023).

4. We deny Linarez’s petition as to her CAT claim because she failed to

raise any challenge to the BIA’s denial of CAT protection in her opening brief.

See Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004) (“We will not ordinarily

consider matters on appeal that are not specifically and distinctly argued in [the

petitioner’s] opening brief. . . .”) (citation and internal quotation marks omitted).

5. Finally, we reject as unsupported by the record Linarez’s contention

that the agency ignored, or otherwise declined to address, her request for voluntary

departure. Linarez explicitly informed the IJ that she did not seek voluntary

departure.

PETITION DENIED.