Pisco-Shupingahua v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2024
• Docket: 23-3743
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARILUZ PISCO- No. 23-3743 SHUPINGAHUA; JULIO SERMENO- Agency Nos. GAVANCHO; LEONARDO SERMENO- A246-045-987 PISCO, A246-045-986 A246-045-988 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 7, 2024** Phoenix, Arizona

Before: HAWKINS, TASHIMA, and OWENS, 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). Mariluz Pisco-Shupingahua (“Pisco”), a native and citizen of Peru, seeks

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

an Immigration Judge’s (“IJ’s”) denial of her application for asylum, withholding of

removal, and protection under the Convention against Torture (“CAT”). Pisco’s

husband, Julio Sermeno-Gavancho, and child, Leonardo Sermeno-Pisco, are

derivative applicants on her asylum application. We have jurisdiction under 8

U.S.C. § 1252(a), and we deny the petition.

Because the BIA conducted its own independent review of the evidence and

law in this case, our review is limited to the BIA’s decision. Vitug v. Holder, 723

F.3d 1056, 1062 (9th Cir. 2013). We review factual findings for substantial evidence

and legal questions de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020). We

also review due process challenges de novo. Zetino v. Holder, 622 F.3d 1007, 1011‒

12 (9th Cir. 2010).

1. The BIA applied the proper standard of review to the IJ’s decision,

reviewing all questions of law de novo and the findings of fact for clear error. 8

C.F.R. § 1003.1(d)(3)(i)-(ii).

2. There was no error in finding Pisco failed to establish a nexus between any

alleged harm and a protected ground. Her testimony was that the threats were

motivated by a desire to collect a financial debt. This is insufficient on its own to

establish the required nexus. See Baballah v. Ashcroft, 367 F.3d 1067, 1075 n.7

2 23-3743 (9th Cir. 2004) (Ninth Circuit precedent precludes relief when persecution is “solely

on account of an economic motive”); see also Zetino, 622 F.3d at 1016 (“[A

noncitizen’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.”).

Nor does Pisco identify any additional evidence supporting the assertion that

the threats were motivated by Pisco’s membership in a proposed particular social

group. Thus, the lack of nexus in Pisco’s case is dispositive for both her asylum and

withholding claims and renders any of her remaining contentions about the

sufficiency of evidence moot. See Rodriquez-Zuniga v. Garland, 69 F.4th 1012,

1018 (9th Cir. 2023).

3. Substantial evidence supports the BIA’s conclusion that Pisco is not

entitled to CAT protection. A noncitizen seeking protection under the CAT bears

the burden of showing “that it is more likely than not that [she] will be tortured upon

removal, and that the torture will be inflicted at the instigation of, or with the consent

or acquiescence of, the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th

Cir. 2007); accord 8 C.F.R. § 1208.16(c)(2)-(4). Nor do conditions in Peru make

her eligible for CAT protection. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152

(9th Cir. 2010) (per curiam); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th

Cir. 2016). Pisco provides no evidence that she faces any future threat of torture, let

alone one that is particularized or more likely than any threat to the populace of Peru

3 23-3743 as a whole. Moreover, she testified that the Peruvian police would protect her upon

her return.

4. Nor did Pisco’s removal proceedings violate due process. To demonstrate

a violation of due process, it must be shown that “(1) the proceeding was so

fundamentally unfair that the [noncitizen] was prevented from reasonably presenting

[her] case, and (2) the [noncitizen] demonstrates prejudice, which means that the

outcome of the proceeding may have been affected by the alleged violation.” Zetino,

622 F.3d at 1013 (citation omitted).

The characterization of the IJ’s persecution findings as mere “speculation” is

inaccurate. The IJ provided specific reasons, supported by evidence, to justify the

conclusions. Moreover, the BIA upheld the denial of asylum and withholding of

removal claims solely on nexus grounds, and thus did not reach a conclusion on any

of the IJ’s findings regarding persecution. Thus, the outcome of the proceeding

would not have differed, and no prejudice occurred.

The stay of removal remains in place until the mandate issues.

PETITION DENIED.

4 23-3743