Puac-Puac v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2025
• Docket: 24-2820
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NORBERTA MAGDALENA PUAC- No. 24-2820 PUAC; E. G. M-P., Agency Nos. A215-587-900 Petitioners, A215-587-901 v. MEMORANDUM* PAMELA BONDI, Attorney General,

Respondent.

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

Submitted April 9, 2025** Pasadena, California

Before: BADE and SUNG, Circuit Judges, and KANE, District Judge.***

Norberta Magdalena Puac-Puac and her minor child (Petitioners), natives of

Guatemala petition for review of the Board of Immigration Appeals (BIA)’s

* 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 Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. dismissal of an appeal from an Immigration Judge (IJ)’s decision denying their

applications for asylum, statutory withholding of removal, and relief under the

Convention Against Torture (CAT).1 When, as in this case, the BIA affirms the IJ

pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994), and “does

not express any disagreement with the IJ’s reasoning or conclusions, we revisit

both decisions and treat the IJ’s reasons as those of the BIA.” Gutierrez v. Holder,

662 F.3d 1083, 1086 (9th Cir. 2011). We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition.

1. Petitioners forfeited review of the agency’s denial of both asylum and

withholding of removal by failing to challenge the agency’s dispositive

determinations that they failed to establish a cognizable particular social group

(PSG) and failed to show a nexus between a protected ground and past or future

harm. Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022) (arguments that

are not meaningfully developed in a petitioner’s opening brief are forfeited).

Applicants for asylum and withholding of removal have the burden of

demonstrating a nexus between any past harm or feared future harm and a

protected ground. Umana-Escobar v. Garland, 69 F.4th 544, 551 (9th Cir. 2023)

1 Petitioner Puac-Puac’s minor child is a derivative beneficiary of her application for asylum under 8 U.S.C. § 1158(b)(3)(A). The minor child did not file a separate application for withholding of removal or CAT protection, and those forms of relief do not allow for derivative claims. Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).

2 24-2820 (“A nexus between the harm and a protected ground is a necessary element of

asylum and withholding of removal.”); see also 8 U.S.C. § 1158(b)(1)(B)(i) (listing

protected grounds). Petitioners allege persecution based on two protected grounds:

(1) membership in the proposed PSG “Members of Family and Quiche Speaker,”

and (2) indigenous race.

We have recognized that the “requirements for a cognizable group [are] an

immutable characteristic, particularity, and social distinction.” See Diaz-Reynoso

v. Barr, 968 F.3d 1070, 1084 (9th Cir. 2020) (citing Matter of M-E-V-G-, 26 I. &

N. Dec. 227, 227 (B.I.A. 2014)). The applicant must establish “all the

requirements” for a PSG to constitute a protected ground. Id. Applying these

requirements, the agency determined that the proposed PSG was not legally

cognizable for lack of particularity and social distinction. Petitioners do not

challenge the determination that the proposed PSG did not satisfy these two

requirements. Instead, Petitioners’ opening brief can be reasonably understood as

arguing for different, or fewer, requirements. But we are bound by our prior

precedent. Silva v. Garland, 993 F.3d 705, 717 (9th Cir. 2021), abrogated on

other grounds, Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024); Loper

Bright Enters., 603 U.S. at 412 (clarifying that “the Court’s change in interpretive

methodology” did not “call into question prior cases that relied on the Chevron

framework”).

3 24-2820 In addition to failing to challenge the agency’s determination that the

proposed PSG did not meet two of the necessary requirements, Petitioners also fail

to challenge the agency’s determination that they did not demonstrate a nexus

between any past or future harm and the other alleged protected ground:

indigenous race. Therefore, as the government argues, Petitioners forfeited any

claims related to both issues. Hernandez, 47 F.4th at 916; Fed. R. App. P.

28(a)(8).

The agency’s unchallenged nexus and cognizability determinations are

dispositive of the claims for asylum and withholding of removal. Riera-Riera v.

Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of a nexus to a protected

ground is dispositive of [a petitioner’s] asylum and withholding of removal

claims.”); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (denying

petition for review when PSG was not cognizable), abrogated on other grounds,

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc).

Therefore, we deny the petition for review as to these claims.

2. The BIA determined that Petitioner Puac-Puac forfeited review of the

denial of CAT protection. Petitioner argues that the BIA failed to consider all the

evidence, but she does not challenge the BIA’s waiver determination. The BIA

properly found that Puac-Puac waived any challenge to the denial of CAT

protection because her brief to the BIA did not include any specific arguments

4 24-2820 pertaining to that issue. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.

2009) (en banc) (per curiam) (“[W]hen a petitioner does file a brief, the BIA is

entitled to look to the brief for an explication of the issues that petitioner is

presenting to have reviewed.”).

Puac-Puac also argues that the IJ failed to consider all the evidence

pertaining to CAT protection, but she did not present this argument to the BIA and

therefore failed to exhaust her administrative remedies. 8 U.S.C. § 1252(d)(1).

Because the government raised the exhaustion requirement, we decline to consider

Puac-Puac’s arguments related to the denial of CAT protection. See Santos-

Zacaria v. Garland, 598 U.S. 411, 419, 423 (2023) (holding that § 1252(d)(1) is a

non-jurisdictional, claim-processing rule that this court must enforce unless waived

or forfeited).

PETITION DENIED.2

2 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied.

5 24-2820