Ortiz Hernandez De Coronado v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2024
• Docket: 22-1242
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSA MAGLENY ORTIZ HERNANDEZ No. 22-1242 DE CORONADO; ELENA SOFIA Agency Nos. CORONADO ORTIZ; JOSE ANTONIO A215-846-152 CORONADO VARGAS; HUGO JOSE A215-846-155 CORONADO ORTIZ, A215-846-153 A215-846-154 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 11, 2024** San Francisco, California

Before: SILER***, CLIFTON, and M. SMITH, Circuit Judges.

* 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 Eugene E. Siler, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. Rosa Magleny Ortiz Hernandez de Coronado (“Coronado”), collectively with

her husband and two of her children, all natives and citizens of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of

the Immigration Judge’s (“IJ”) decision denying her application for asylum.

Coronado asks this court to find that the IJ and BIA erred when they determined that

“pharmacy business owners” in Guatemala does not constitute a particular social

group, and that the harassment Coronado faced following her complaint against a

private school headmistress does not amount to persecution. The parties are familiar

with the facts, so we discuss them here only where necessary. We deny the petition.

We have jurisdiction under 8 U.S.C. § 1252(a). “When the BIA adopts an IJ’s

decision, but also adds its own reasoning, as occurred here, we review both

decisions.” Kaur v. Ashcroft, 388 F.3d 734, 736 (9th Cir. 2004). We review factual

findings for substantial evidence. Grigoryan v. Barr, 959 F.3d 1233, 1239 (9th Cir.

2020). “Whether a group constitutes a ‘particular social group’ is a question of law,”

which we review de novo. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014)

(citation omitted).

1. Coronado’s first claim fails because “pharmacy business owners” is not a

cognizable particular social group. See Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (BIA 2014) (holding that an applicant for asylum seeking relief based on

membership in a particular social group must establish that the group is composed

2 22-1242 of members who share a common immutable characteristic, among other factors).

Pharmacy owners do not share an immutable characteristic. See Donchev v.

Mukasey, 553 F.3d 1206, 1217 (9th Cir. 2009) (defining an “immutable

characteristic” as an attribute a person “cannot change, or should not be required to

change because it is fundamental to their individual identities or consciences”

(quoting Matter of Acosta, 19 I & N. Dec. 211, 233 (BIA 1985))). Owning a

pharmacy is not itself an immutable characteristic. See Ochoa v. Gonzales, 406 F.3d

1166, 1171 (9th Cir. 2005) (finding that Colombian “business owners” do not share

an “innate characteristic”). And the record does not compel the conclusion that

Coronado’s pharmacy ownership is beyond her power to change or fundamental to

her identity—especially considering she opened the pharmacy in 2005, moved away

in 2009, only visited the pharmacy every two months, and then closed the business

in 2014.1

1 Coronado now suggests that she was not simply a pharmacy owner, but also a pharmacist who was targeted by criminals who sought her “knowledge, expertise, and access” to make and sell narcotics. However, the record does not reflect any evidence that Coronado is or was a pharmacist with expert pharmaceutical knowledge. And during Coronado’s hearing, her attorney argued that “she’s being targeted because of her direct opposition to efforts by the cartel to steal money and drugs from her business”—not because of her pharmaceutical expertise. At no point did Coronado or her attorney mention the business licenses, “certain educational requirements,” or government issued permissions that she now claims set her apart from the population.

3 22-1242 2. Coronado’s second claim fails because the headmistress’s threats against

Coronado did not rise to the level of past persecution. The headmistress did not

explicitly threaten Coronado. Rather, she urged Coronado to drop her complaint

during the Office of Human Rights-sanctioned conference on the matter. Although

Coronado interpreted this as a threat, it was neither explicit nor specific, and was

unaccompanied by violence or harm. See Villegas Sanchez v. Garland, 990 F.3d

1173, 1179 (9th Cir. 2021) (“Mere threats, without more, do not necessarily compel

a finding of past persecution.”). The three anonymous calls threatening to “silence”

Coronado were likewise inexplicit, unspecific, and unaccompanied by violence. See

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (considering whether

threats were “repeated, specific and combined with confrontation or [some] other

mistreatment” (internal quotation marks omitted)). Despite Coronado’s

interpretations, the record shows that she never faced “an immediate threat of severe

physical violence or death.” See Flores Molina v. Garland, 37 F.4th 626, 633-34

(9th Cir. 2022). And unlike the death threats received by the petitioner in Canales-

Vargas v. Gonzales, the quantity and severity of the threats made against Coronado

did not intensify with time and were not—as far as Coronado knows—made by a

criminal or terrorist organization. 441 F.3d 739, 745-46 (9th Cir. 2006).

Accordingly, the agency properly found that these threats did not rise to the level of

past persecution.

4 22-1242 3. Coronado also failed to show an objectively reasonable fear of future

persecution. Because Coronado’s daughter is now an adult college student studying

in the United States and Coronado abandoned her complaint against the headmistress

by leaving Guatemala before her scheduled hearing, there is insufficient evidence to

show that Coronado would be harmed based on her now-moot complaint. As the IJ

and BIA pointed out, the record is bereft of evidence that the headmistress or

anonymous caller remain interested in harming Coronado. Accordingly, Coronado

is not eligible for asylum under her second claim.

4. Coronado failed to meaningfully challenge the IJ’s disposition of her

withholding of removal and Convention Against Torture (CAT) claims before the

BIA. Her brief before the BIA contains only one sentence regarding the IJ’s denial

of those claims, which reads:

[T]he undersigned respectfully requests that the Board reverse the IJ’s decision denying the respondent’s claim to asylum withholding [sic] and protection under CAT[.]

This statement does not tell the BIA why Coronado believes the IJ should be

reversed, but instead merely requests reversal. Such conclusory statements do not

meaningfully challenge the IJ’s decision on appeal. Rizo v. Lynch, 810 F.3d 688,

692-93 (9th Cir. 2016). A failure to challenge a claim constitutes a waiver of that

claim. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009). The BIA

5 22-1242 correctly determined that Coronado waived her withholding and CAT claims.

Therefore, we lack jurisdiction over those claims.

PETITION DENIED.

6 22-1242