Ruth Izaguirre-Salmeron v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2023
• Docket: 18-71986
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RUTH NOEMI IZAGUIRRE-SALMERON, No. 18-71986 AKA Ruth Noemi Izaguirre-Salmeron De Pineda; OSCAR JAFETH PINEDA- Agency Nos. A208-291-785 IZAGUIRRE, A208-291-783

Petitioners, MEMORANDUM** v.

MERRICK B. GARLAND,* Attorney General,

Respondent.

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

Submitted February 21, 2023***

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

* Merrick B. Garland is substituted for his predecessor, Matthew G. Whitaker, as Attorney General of the United States. Fed. R. App. P. 43(c)(2). ** 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). Ruth Noemi Izaguirre-Salmeron (“Izaguirre”) and her son, Oscar Jafeth

Pineda-Izaguirre (“Oscar”) (collectively, “Petitioners”), both natives and citizens

of Honduras, petition pro se for review of the Board of Immigration Appeals’

(“BIA”) decision dismissing their appeal of an Immigration Judge’s (“IJ”) decision

denying asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252. As the

parties are familiar with the facts, we do not recount them here. We deny the

petition.

“Where, as here, the BIA agrees with the IJ’s reasoning, we review both

decisions.” De Leon v. Garland, 51 F.4th 992, 999 (9th Cir. 2022) (citation

omitted). “We review the denial of asylum, withholding of removal and CAT

claims for substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028

(9th Cir. 2019). “Under this standard, we must uphold the agency determination

unless the evidence compels a contrary conclusion.” Id.

1. Substantial evidence supports the agency’s determination that Petitioners

are not eligible for asylum because they did not demonstrate harm rising to the

1 Izaguirre’s son, Oscar, is a derivative beneficiary of Izaguirre’s asylum application. See 8 U.S.C. § 1158(b)(3)(A); 8 C.F.R. § 1208.21. As there is no derivative status for withholding of removal and CAT protection, and Oscar did not file his own application, he is not eligible for those forms of relief. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).

2 level of persecution or nexus to a protected ground. See 8 U.S.C.

§ 1158(b)(1)(B)(i) (requirements for asylum eligibility).

“Persecution is an extreme concept that does not include every sort of

treatment our society regards as offensive.” Duran-Rodriguez, 918 F.3d at 1028

(internal quotation marks and citation omitted). “Mere threats, without more, do

not necessarily compel a finding of past persecution.” Villegas Sanchez v.

Garland, 990 F.3d 1173, 1179 (9th Cir. 2021). “Instead, we have been most likely

to find persecution where threats are repeated, specific and combined with

confrontation or other mistreatment.” Sharma v. Garland, 9 F.4th 1052, 1062

(9th Cir. 2021) (internal alteration, quotation marks, and citation omitted).

Here, the Mara-18 gang approached Oscar on three separate occasions,

telling him to join their gang and that, if he refused, they “could kill [him].”

The gang also approached Izaguirre twice, demanding that she let Oscar join them

or they would kill her or Oscar. Izaguirre testified that she was afraid because she

heard on the news that the gang had killed another child in the neighborhood for

refusing to join their gang. However, the gang never committed physical violence

against Petitioners nor threatened them with weapons. And the newspaper article

Petitioners submitted about the other child’s death did not mention any gang

involvement.

3 On these facts, although the agency could have concluded that the gang’s

threats were sufficiently serious as to constitute persecution, we cannot say the

evidence compels such a conclusion. See Villegas Sanchez, 990 F.3d at 1179

(holding that threats alone, occurring several times over a period of weeks, did not

necessarily compel a finding of persecution); Duran-Rodriguez, 918 F.3d at 1028

(determining that death threats unaccompanied by acts of violence were

insufficient to constitute persecution).

Nor does the record compel a finding that Petitioners have a well-founded

fear of future persecution. See Sharma, 9 F.4th at 1065. Izaguirre testified that her

two daughters have continued to live in Petitioners’ family home in Honduras

without being bothered or threatened by the gang. She is also not aware of her

nephews in Honduras being threatened or approached by gangs. See id. at 1066

(“The ongoing safety of family members in the petitioner’s native country

undermines a reasonable fear of future persecution.”).

Moreover, substantial evidence supports that Petitioners failed to establish a

nexus between their claims and a protected ground. Petitioners alleged before the

IJ that their persecution was or would be on account of their membership in two

particular social groups: (1) for Izaguirre, the group is “Honduran mothers in

Honduras threatened by gangs to prevent attempted intervention of gang

recruitment of their children”; and (2) for Oscar, the group is “Honduran male

4 children targeted and threatened by gangs because of their fundamental beliefs and

are thus, targeted by gang members in an effort to impute their gang lifestyle on

Honduran men.” However, substantial evidence supports the agency’s conclusion

that Petitioners were targeted because of the gang’s desire to expand their criminal

enterprise, rather than on account of any particular social groups. 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.”); cf. Ramos-Lopez v. Holder, 563 F.3d 855,

862 (9th Cir. 2009) (concluding that a young Honduran man’s refusal to join a

gang did not prove persecution on account of a protected ground), abrogated on

other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en

banc).

2. Because Izaguirre failed to establish the lower burden of proof for asylum

eligibility, her claim for withholding of removal also fails. See Davila v. Barr, 968

F.3d 1136, 1142 (9th Cir. 2020).

3. Substantial evidence also supports the agency’s denial of CAT protection

because Izaguirre failed to show that she will more likely than not be tortured with

the acquiescence of the Honduran government or a person acting in an official

capacity. See Duran-Rodriguez, 918 F.3d at 1029-30.

5 4. Finally, this court’s recent en banc decision squarely forecloses

Petitioners’ argument that jurisdiction never vested in the immigration court

because their Notices to Appear did not include a hearing date and time for their

initial removal hearings. See United States v. Bastide-Hernandez, 39 F.4th 1187,

1192-93, 1193 n.9 (9th Cir. 2022) (en banc) (holding that a defective Notice to

Appear does not deprive the immigration court of subject matter jurisdiction).

PETITION DENIED.