Migdalia Giron Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2022
• Docket: 17-72906
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 18 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

MIGDALIA AZUCENA GIRON GARCIA; No. 17-72906 NARALY ROCIO AGUILAR-GIRON, Agency Nos. A206-455-937 Petitioners, A206-455-938

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

On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 15, 2022** San Francisco, California

Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.

Petitioner Migdalia Azucena Giron Garcia (“Giron Garcia”), a native and

citizen of Guatemala, petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) upholding the order of the Immigration Judge (“IJ”)

denying her application for asylum and withholding of removal and ordering her

removed to Guatemala. Petitioner Naraly Rocio Aguilar-Giron, Giron Garcia’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). daughter, is a derivative beneficiary with respect to her mother’s application for

asylum only. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005); 8 U.S.C.

§ 1158(b)(3)(A); 8 C.F.R § 1208.21. We have jurisdiction pursuant to § 242(a)(1)

of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), and we review the

agency’s factual findings for substantial evidence. Bringas-Rodriguez v. Sessions,

850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Under that standard, the

“administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We

deny the petition.

To qualify for asylum, Giron Garcia must show that she was persecuted or

has a well-founded fear of persecution “on account of race, religion, nationality,

membership in a particular social group, or political opinion,” see 8 U.S.C.

§ 1101(a)(42)(A), and that one of these protected ground constitutes “one central

reason” for the alleged persecution, id. § 1158(b)(1)(B)(i). To qualify for

withholding of removal, Giron Garcia must show that one of these protected

grounds constituted “a reason” for the persecution. Barajas-Romero v. Lynch, 846

F.3d 351, 358–59 (9th Cir. 2017); see also 8 U.S.C. § 1231(b)(3)(A). Substantial

evidence supports the BIA’s determination that Giron Garcia failed to establish a

sufficient nexus, under either of these standards, between her alleged persecution

and her membership in a particular social group.

2 The agency reasonably determined that Giron Garcia had failed to show that

the harassing phone calls and text messages she received were based on her

membership in her proposed social groups, namely, “member[s] of the Giron

Garcia family” and “Guatemalan women.” Giron Garcia acknowledged that she

did not know the identity of the anonymous caller, and while she thought that the

caller was probably one of her husband’s ex-girlfriends, she also said that she did

not think that the caller was either of the two women with whom he had previously

lived. Although “‘the factual circumstances alone’ may constitute sufficient

circumstantial evidence of a persecutor’s identity or motives,’” Canales-Vargas v.

Gonzales, 441 F.3d 739, 744 (9th Cir. 2006) (quoting Navas v. INS, 217 F.3d 646,

657 (9th Cir. 2000)), the record here does not compel the conclusion that the

anonymous caller was motivated by Giron Garcia’s status as a Guatemalan woman

or as a member of the Giron Garcia family. See Bringas-Rodriguez, 850 F.3d at

1059. The record would support a reasonable inference that the anonymous caller

was motivated by a purely personal dispute that she had with Giron Garcia, and

“‘[p]urely personal retribution’ is not persecution ‘on account of’ a protected

ground.” Garcia v. Wilkinson, 988 F.3d 1136, 1144–45 (9th Cir. 2021) (alteration

in original) (citation omitted). On this record, the agency permissibly rejected, as

unduly speculative, Giron Garcia’s contention that the caller acted based on her

membership in her proposed social groups.

3 The petition for review is DENIED.1

1 In a supplemental letter under Federal Rule of Appellate Procedure 28(j), Petitioners contend that the Immigration Court lacked jurisdiction because they were served with Notices to Appear that failed to designate a date and time to appear before an immigration judge. Petitioners acknowledge, however, that they were later served with hearing notices containing this information. Their argument on this score is thus foreclosed by our decision in Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019).