Nesly Carpio-Batres v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 17-71235
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NESLY MARIELA CARPIO-BATRES; No. 17-71235 ANDERSON DAVID RAMIREZ-CARPIO, Agency Nos. A208-447-788 Petitioners, A208-447-789

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.

Petitioners Nesly Carpio-Batres and Anderson Ramirez-Carpio seek review

of a Board of Immigration Appeals (BIA) decision dismissing Petitioners’ appeal

* 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). from denial of asylum and withholding of removal by an Immigration Judge (IJ). 1

We have jurisdiction under 8 U.S.C. § 1252. Reviewing the factual findings in the

BIA’s decision and the parts of the IJ’s decision adopted by the BIA, Cordon-Garcia

v. INS, 204 F.3d 985, 990 (9th Cir. 2000), for substantial evidence, Rayamajhi v.

Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019), we deny the petition.

1. In denying asylum and withholding of removal, the BIA affirmed the IJ’s

conclusion that Petitioners’ putative particular social groups of Guatemalan single

mothers and single mothers in Guatemala who have family ties in the United States

are not cognizable. The BIA also concluded that Petitioners established no nexus

between these putative particular social groups and past harm or a well-founded fear

of future harm in Guatemala.

Petitioners do not raise in this court any challenge to the IJ’s cognizability

findings. This omission is fatal to Petitioners’ claim because non-citizens seeking

asylum or withholding of removal based on particular social group membership must

set out a cognizable particular social group. See Diaz-Reynoso v. Barr, 968 F.3d

1070, 1076 (9th Cir. 2020). And “[w]e will not manufacture arguments for [a

petitioner].” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). We deny the

petition on forfeiture grounds. See Etemadi v. Garland, 12 F.4th 1013, 1026 (9th

1 Anderson Ramirez-Carpio withdrew his separate application for relief, but he remains a derivative beneficiary on his mother’s application.

2 Cir. 2021) (“[F]orfeiture is the failure to make a timely assertion of a right, whereas

waiver is the intentional relinquishment or abandonment of a right.” (quoting

Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir. 2019))).

In any event, even assuming that Petitioners set out a cognizable particular

social group, they did not make the requisite “show[ing] that there is a nexus between

[the purported] mistreatment and a protected ground.” Khudaverdyan v. Holder, 778

F.3d 1101, 1106 (9th Cir. 2015) (internal quotation marks and citation omitted); see

also Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (discussing the nexus

requirement for withholding of removal). Petitioners’ bare assertion that such a

nexus exists is insufficient to warrant relief. See Greenwood, 28 F.3d at 977. We

deny the petition for the independent reason that Petitioners abandoned their

arguments with regard to the agency’s nexus finding. See Martinez-Serrano v. INS,

94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are not supported

by argument are deemed abandoned.”).

We further conclude that the agency properly determined that Nesly Carpio-

Batres’s status as a Guatemalan single mother is not a reason, much less one central

reason, why she was extorted there. See Santos-Ponce v. Wilkinson, 987 F.3d 886,

890 (9th Cir. 2021) (“[W]here ‘there was no nexus at all,’ we draw ‘no distinction

between the “one central reason” phrase in the asylum statute and the “a reason”

phrase in the withholding statute.’” (quoting Barajas-Romero v. Lynch, 846 F.3d

3 351, 360 (9th Cir. 2017))). She testified that this exchange took place during her

initial phone call with her extorters: “And I asked them why? Why do you want us

to give you money? And they said we know everything that you have. And we

know that your family send you money.” The BIA validly concluded from this

testimony that the extortion Nesly Carpio-Batres allegedly suffered in Guatemala

was merely the product of “random criminal acts and a desire for money by the

gang,” and not the fact she was a single mother. This conclusion that Petitioners

have not shown any nexus between their purported extortion in Guatemala and any

protected ground is supported by substantial evidence. See Zetino v. Holder, 622

F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by

criminals motivated by theft or random violence by gang members bears no nexus

to a protected ground.”). And, to the extent that Petitioners claim their extorters’

alleged death threats and armed attack inside their home in Guatemala constitutes

past persecution and necessarily establishes a well-founded fear of future

persecution, this assertion is unavailing for lack of a nexus to a protected ground.

See id. We deny the petition for the separate reason that substantial evidence

supports the BIA’s determination that Petitioners did not establish a nexus between

their putative particular social groups and the harm they purportedly suffered or fear

in Guatemala. See id.

4 2. Petitioners did not discuss their Convention Against Torture claim in their

opening brief, and as a result they forfeited any challenge to the agency’s decision

with regard to this issue. See Etemadi, 12 F.4th at 1026.

PETITION DENIED.