Miriam Gomez Hernandez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2018
• Docket: 15-72181
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIRIAM MERCEDES GOMEZ No. 15-72181 HERNANDEZ; KAREN ALIZETH MENDOZA GOMEZ, Agency Nos. A202-098-021 A202-098-022 Petitioners,

v. MEMORANDUM *

JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted May 16, 2018** Seattle, Washington

Before: BERZON, THACKER,*** and HURWITZ, Circuit Judges.

Miriam Mercedes Gomez Hernandez, along with her minor daughter

* 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 Stephanie Dawn Thacker, United States Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation. (“Petitioners”), seek review of the Board of Immigration Appeals (“BIA”) and

immigration judge (“IJ”) decisions denying their applications for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for

review because the BIA and IJ decisions are supported by substantial evidence.

To be eligible for asylum, a petitioner must demonstrate she “is unable or

unwilling to return to h[er] home country because of a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” C.J.L.G. v. Sessions, 880 F.3d 1122, 1139 (9th

Cir. 2018) (internal quotation marks omitted). “An applicant may establish a well-

founded fear of future persecution in two ways: by proving past persecution, or by

demonstrating that [s]he has a subjectively genuine and objectively reasonable fear

of future persecution.” Id. (internal quotation marks omitted).

1. Both the IJ and the BIA found that Petitioners did not suffer past

persecution. Petitioners have provided no evidence compelling a contrary finding.

Indeed, Gomez Hernandez admitted she had not been harmed, threatened, harassed,

or attacked in any way in Guatemala.

2. We also reject Petitioners’ arguments that they faced, and will face in the

future, economic and societal discrimination in Guatemala that rises to the level of

persecution. Our decisions recognizing economic harm as persecution have been

2 grounded in an individualized showing of harm. See, e.g., Baballah v. Ashcroft,

367 F.3d 1067, 1075 (9th Cir. 2004) (recognizing economic persecution where

Israeli Marines “deliberately interfered” with petitioner’s attempts to maintain a

fishing business by destroying his fishing nets, frightening his crew, and making

sure he received unwarranted citations); Gonzalez v. INS, 82 F.3d 903, 906, 910 (9th

Cir. 1996) (same, where petitioner “was forced to liquidate her business because she

was denied the card she would need from the Ministry of Commerce to buy

inventory”); see also Kovac v. INS, 407 F.2d 102, 104, 107 (9th Cir. 1969) (ordering

reopening of immigration proceedings where petitioner alleged economic harm

based on Yugoslavian police “contact[ing] his employers and caus[ing] him to lose

several jobs as a chef, and [being] turned away when seeking employment while

others less qualified were hired”). Petitioners have not demonstrated individualized

economic harm.

3. Petitioners also claim they are members of a disfavored group (that is, Maya

who speak Mam), membership in which may establish a well-founded fear of

persecution. Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009). Even so,

Petitioners were required to demonstrate that they, “in particular, [are] likely to be

targeted as a member of that [disfavored] group,” and “some evidence of

individualized risk is necessary for the petitioner to succeed.” Id. at 977–978

(internal quotation marks omitted) (emphasis in original). Petitioners have not made

3 that individualized showing.

4. We also reject Petitioners’ argument that they have demonstrated a “pattern

or practice of persecution against similarly situated individuals.” Lolong v.

Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007). “[W]e have required that petitioners

alleging a pattern or practice of persecution by non-government actors also prove

that the government is unable or unwilling to control those actors.” Id. at 1180.

Petitioners have not made this showing.

5. Finally, we reject Petitioners’ argument that both the IJ and BIA violated

their due process rights by not sufficiently explaining their reasoning or providing

any meaningful analysis on the CAT claim. To the extent Petitioners make an

argument regarding the IJ’s decision, they failed to raise this issue on appeal to the

BIA, and therefore, we may not address it. See Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004) (because “due process challenge . . . was never presented below,

we lack subject-matter jurisdiction to address it now”). To the extent they challenge

the BIA’s cursory dismissal of the CAT claim, the challenge is without merit. See

Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995) (“The adoption of a lower

tribunal’s reasons is a valid practice on review.”).

PETITION FOR REVIEW DENIED.