Najarro-Najarro v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2024
• Docket: 24-97
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL JEREMIAS NAJARRO- No. 24-97 NAJARRO; HAIDE QUISPE- Agency Nos. CRUZ; DANIEL NAJARRO-QUISPE, A220-856-132 A220-856-133 Petitioners, A220-856-134 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 18, 2024** Seattle, Washington

Before: McKEOWN, GOULD, and LEE, Circuit Judges.

Petitioners are Peruvian nationals, Daniel Najarro-Quispe (Daniel) and his

parents, Daniel Jeremias Najarro-Najarro (Najarro-Najarro) and Haide Quispe-

* 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). Cruz (Quispe-Cruz). They seek review of the Board of Immigration Appeals’

(BIA) order dismissing their appeal of the immigration judge’s (IJ) denial of their

applications for asylum and withholding of removal.

1. In June 2021, when Daniel was 16, he was approached by several

men who asked Daniel to deliver packages for them. Although initially resistant,

Daniel eventually agreed to deliver the packages in exchange for payment. Daniel

delivered up to fifteen packages before growing suspicious and opening one of the

packages to discover that it contained cocaine and marijuana. Daniel delivered that

package but refused any future deliveries. The men attacked Daniel for his refusal,

and Daniel was severely injured as a result of fleeing the attack. Daniel and his

parents fled Peru not long after, seeking asylum in the United States. An

immigration judge denied the family’s asylum and withholding claims, and the

BIA affirmed. The BIA held that Daniel is barred from asylum or withholding of

removal because he committed the serious nonpolitical crime of drug trafficking

before entering the United States. The BIA further held that Najarro-Najarro and

Quispe-Cruz were ineligible for asylum or withholding of removal because they

could not demonstrate that they are persecuted or face a future risk of persecution.

2. We have jurisdiction under 8 U.S.C. § 1252. “The factual findings

underlying the BIA’s determination of eligibility for asylum are reviewed to

determine whether those findings are supported by substantial evidence.” Rizo v.

2 24-97 Lynch, 810 F.3d 688, 690 (9th Cir. 2016).

3. The BIA found that Daniel was ineligible for asylum or withholding

of removal because there were serious reasons for believing he committed the

serious nonpolitical crime of drug trafficking in Peru prior to his entry into the

United States. 8 U.S.C. § 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii); see Go v. Holder,

640 F.3d 1047, 1052–53 (9th Cir. 2011) (finding drug trafficking to be a serious,

nonpolitical crime). Daniel argues that the BIA’s holding is erroneous for three

reasons: (1) because the offense was political in nature; (2) because Daniel did not

have the requisite mens rea to commit the offense; and (3) because Daniel

committed the offense under duress. We reject all three arguments.

4. Daniel’s drug trafficking was not political in nature. Under 8 U.S.C.

§ 1158(b)(2)(A)(iii), a petitioner is not eligible for asylum if “there are serious

reasons for believing that the alien has committed a serious nonpolitical crime

outside of the United States prior to the arrival of the alien in the United States[.]”

A nonpolitical crime is “a crime that was not committed out of genuine political

motives, was not directed toward the modification of the political organization or

structure of the state, and in which there is no direct, causal link between the crime

committed and its alleged political purpose and object.” Guan v. Barr, 925 F.3d

1022, 1031 (9th Cir. 2019) (citations and internal quotation marks omitted).

Daniel does not articulate a political motivation for or consequence of the alleged

3 24-97 drug trafficking. As such, Daniel has not rebutted the presumption that drug

trafficking is a serious, nonpolitical crime. See Go, 640 F.3d at 1052–53.

5. Daniel next argues that he did not possess the requisite mens rea to be

convicted of drug trafficking because he did not know that the packages he

delivered contained illicit substances. But in Daniel’s sworn statement and in his

first round of testimony before the IJ, Daniel stated that he opened one of the boxes

he was asked to deliver and saw the box contained cocaine and marijuana. Despite

knowing that the box contained illicit substances, he delivered the package.

Daniel’s testimony, thus, supports the BIA’s holding that he knowingly delivered

at least one package containing illicit substances, satisfying the mens rea element

of drug trafficking.

6. Daniel also argues that he should not be ineligible for asylum because

this court should recognize a duress defense to the “serious nonpolitical crimes”

bar. But even if such a defense exists, Daniel does not demonstrate that it applies

in this case. Duress requires that the offense at issue be committed because of a

threat to the perpetrator. See, e.g., Ninth Cir. Model Jury Instr. 6.5. Daniel does

not claim that he was threatened until after he stopped delivering the packages. So

he was not under duress when he committed the offense and the duress defense is

unavailable to him.

7. The BIA did not err in denying relief to adult petitioners, Najarro-

4 24-97 Najarro and Quispe-Cruz. To be granted asylum, a petitioner must demonstrate

past persecution or that they have “a well-founded fear of persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). To demonstrate that they were persecuted,

Najarro-Najarro and Quispe-Cruz rely primarily on their testimony about various

criminal acts of which they were victims. Because “[r]andom, isolated criminal

acts perpetrated by anonymous thieves do not establish persecution[,]” Najarro-

Najarro and Quispe-Cruz’s claim of past persecution fails. Gormley v. Ashcroft,

364 F.3d 1172, 1177 (9th Cir. 2004). And because Najarro-Najarro and Quispe-

Cruz did not show sufficient evidence that they would face future persecution in

Peru, their application for asylum based on future persecution also fails.

PETITION DENIED.

5 24-97