Micaela Nicolas-Juan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2020
• Docket: 18-71078
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICAELA AMADA NICOLAS-JUAN; No. 18-71078 MARIA ISABEL NICOLAS-JUAN, Agency Nos. A202-058-471 Petitioners, A202-058-472

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 11, 2020**

Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.

Petitioners Micaela Amada Nicolas-Juan and Maria Isabel Nicolas-Juan,

natives and citizens of Guatemala, seek review of the Board of Immigration

Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). Petitioners fear mistreatment by an abusive uncle, who began stalking,

harassing, and threatening Petitioners after his wife and children left him to live with

Petitioners at their grandmother’s home in Guatemala. We have jurisdiction under

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

Substantial evidence supports the agency’s denial of asylum and withholding.

See Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (reviewing asylum and

withholding decisions for substantial evidence). Even crediting the uncle’s abuse as

persecution, the record does not compel its attribution to a protected ground. See 8

U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C), 1252(b)(4); INS v. Elias-Zacarias, 502

U.S. 478, 481 n.1 (1992) (“To reverse the BIA finding we must find that the evidence

not only supports that conclusion, but compels it.” (emphasis in original)).

Of Petitioners’ three proposed social groups,1 substantial evidence supports

the agency’s finding that two of them—“immediate family members of someone

who has provided support to women who are unable to leave their relationship” and

“Guatemalan girls who are viewed as property”—respectively lack the particularity

and evidence of membership necessary to confer protection. See Reyes v. Lynch,

842 F.3d 1125, 1136–38 (9th Cir. 2016) (reviewing “particularity” ruling for

1 Petitioners originally proposed eight social groups; however, because their opening brief only addresses three of them, we do not consider the other five. See Sung Kil Jang v. Lynch, 812 F.3d 1187, 1189 n.1 (9th Cir. 2015) (treating arguments not raised in petitioner’s opening brief as waived).

2 substantial evidence); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir.

2020) (rejecting categorical exclusion of domestic violence victims as particular

social group while affirming that “the BIA must conduct the proper particular social

group analysis on a case-by-case basis”). We likewise find that, though Petitioners’

familial membership may be cognizable, see Santos-Lemus v. Mukasey, 542 F.3d

738, 743 (9th Cir. 2008) (assuming cognizability of family membership), abrogated

on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013)

(en banc), the evidence that several relatives, including Petitioners’ aunt, have

remained in Guatemala without incident supports the agency’s finding of no nexus

to their uncle’s abuse. See id. (considering a relative’s “continuing safety” in country

of removal to be a “persuasive factor”); Tamang v. Holder, 598 F.3d 1083, 1094 (9th

Cir. 2010) (finding it “especially significant” that the petitioner’s family voluntarily

returned to country of removal and continued to live there unharmed).

Nor is CAT relief required here. See 8 C.F.R. §§ 1208.16(c), 1208.18(a)(1).

Guatemala’s inadequate domestic-violence protections notwithstanding, Petitioners

point to no evidence that the uncle acted as, at the behest of, or with the acquiescence

of the Guatemalan government. See id. § 1208.18(a)(7) (“Acquiescence . . . requires

that the public official, prior to the activity constituting torture, have awareness of

such activity and thereafter breach his or her legal responsibility to intervene to

prevent such activity.”).

3 PETITION DENIED.