Silvia Perdomo Euceda v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2019
• Docket: 15-72412
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SILVIA JACKELINNE PERDOMO No. 15-72412 EUCEDA, Agency No. A088-512-668 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted September 10, 2019** Pasadena, California

Before: RAWLINSON, IKUTA, and BADE, Circuit Judges.

Silvia Jackelinne Perdomo Euceda petitions for review of the decision of the

Board of Immigration Appeals upholding the Immigration Judge’s denial of her

motion to suppress evidence, and denial of her applications for asylum and

withholding of removal and protection under the Convention Against Torture. We

* 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). have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo whether

Perdomo-Euceda established a prima facie case of an egregious constitutional

violation, review the agency’s factual findings for substantial evidence, Gonzalez-

Rivera v. INS, 22 F.3d 1441, 1444 (9th Cir. 1994), and deny the petition.

Perdomo-Euceda is a native and citizen of Honduras.1 In her application for

relief, Perdomo-Euceda claimed that she and her children were subjected to threats

of gang violence in Honduras because she witnessed gang members abduct her

cousin, who was later discovered dead. She claimed these threats continued for

approximately three years before she fled to the United States. Perdomo-Euceda

claimed that she fears harm from gangs if she returns to Honduras. The record

reflects that Perdomo-Euceda’s children remain in Honduras with their

grandmother, apparently unharmed.

At hearings before the IJ, Perdomo-Euceda challenged the admissibility of

Form I-213.2 She argued that Customs and Border Protection agents seized her

without reasonable suspicion or probable cause and therefore any statements

attributed to her in the I-213 should be suppressed. Perdomo-Euceda submitted an

1 The BIA’s decision erroneously states that Perdomo-Euceda is a native and citizen of El Salvador. 2 Form I-213 is a “Record of Deportable Alien.” See Espinoza v. INS, 45 F.3d 308, 309 (9th Cir. 1995).

2 affidavit stating that she was “doing nothing wrong,” and she was “taken into

custody.” At a hearing, she invoked her Fifth Amendment privilege against self-

incrimination and refused to answer any questions about the circumstances of her

arrest.

I.

Generally, the exclusionary rule does not apply in immigration proceedings,

see INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984), however, it can apply

“when the agency egregiously violates a petitioner’s Fourth Amendment rights.”

Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018), reh’g en banc denied, 919

F.3d 1193 (9th Cir. 2019). “A constitutional violation is not egregious unless

‘evidence is obtained by deliberate violations of the [F]ourth [A]mendment.’”

Martinez-Medina v. Holder, 673 F.3d 1029, 1034 (9th Cir. 2011) (alterations in

original) (quoting Gonzalez-Rivera, 22 F.3d at 1449).

Under Matter of Barcenas, Perdomo-Euceda had an initial burden to “come

forward with proof establishing a prima facie case” of a constitutional violation

that would require suppression of evidence. 19 I. & N. Dec. 609, 611 (B.I.A.

1988) (quoting Matter of Burgos, 15 I. & N. Dec. 278, 279 (B.I.A. 1975)). If a

petitioner makes this showing, the burden shifts to the government to justify the

way it obtained the evidence. See id. Perdomo-Euceda does not challenge the

procedure set forth in Matter of Barcenas, nor does she argue it was wrongly

3 decided. Instead, Perdomo-Euceda argues her evidence establishes a prima facie

showing of an egregious constitutional violation. Her affidavit, however, did not

provide any information about her encounter with agents or her arrest. Her limited

hearing testimony also failed to provide any such information. Therefore,

Perdomo-Euceda’s evidence does not support her claim of an egregious

constitutional violation and the government was thus not required to justify how it

obtained its evidence. See Matter of Barcenas, 19 I. & N. at 611. The BIA

properly denied Perdomo-Euceda’s motion to suppress.

II.

Substantial evidence supports the BIA’s conclusion that Perdomo-Euceda

failed to provide a nexus between her fear of gang violence and any ground for

asylum. See Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001); Grava v. INS, 205

F.3d 1177, 1181–82 (9th Cir. 2000). To establish asylum eligibility, an applicant

must show that she has a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). We uphold the

BIA’s decision unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502

U.S. 478, 481 n.1 (1992); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th

Cir. 2017) (en banc).

4 Nothing in the record compels reversal of the BIA’s determination that

Perdomo-Euceda’s generalized fear of possible gang violence lacks a nexus to any

protected ground for asylum. On appeal, Perdomo-Euceda argues that she was

persecuted due to her membership in a particular social group, namely, the

members of the Euceda family who have knowledge of her cousin’s abduction.

Because Perdomo-Euceda failed to raise this argument to the BIA, it is not

exhausted and we lack jurisdiction to consider it. Barron v. Ashcroft, 358 F.3d

674, 677 (9th Cir. 2004). Thus, Perdomo-Euceda’s asylum claim and higher-

standard withholding of removal claim both fail. See Zehatye v. Gonzales, 453

F.3d 1182, 1190 (9th Cir. 2006).

III.

Relief under CAT is granted when a petitioner proves “that it is more likely

than not that he or she will be tortured in the country of removal.” Parada v.

Sessions, 902 F.3d 901, 914 (9th Cir. 2018); see also 8 U.S.C. § 1252(b)(4)(B).

The torture must be “inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.”

8 C.F.R. § 1208.18(a)(1). Substantial evidence supports the BIA’s determination

that Perdomo-Euceda failed to show she would be subjected to torture by public

officials, or with their consent or acquiescence, if she returned to Honduras.

Petition DENIED.