Tania Reza-Paniagua v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 21, 2021
• Docket: 20-71916
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TANIA REZA-PANIAGUA; et al., No. 20-71916

Petitioners, Agency Nos. A209-388-613 A209-388-614 v. A209-388-615 A209-388-616 MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent.

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

Submitted December 10, 2021** Pasadena, California

Before: M. SMITH, LEE, and FORREST, Circuit Judges.

Tania Reza-Paniagua and her three minor daughters seek asylum in the United

States, withholding of removal, and protection under the Convention against Torture

(CAT). The parties are familiar with the facts, and so we do not recount them here.

* 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). Because the Board of Immigration Appeals (BIA) adopted only one ground

of the Immigration Judge’s (IJ) decision, we review the BIA’s “decision as based

exclusively on such ground.” Parussimova v. Mukasey, 555 F.3d 734, 738 n.3 (9th

Cir. 2009).1 We review findings of fact under a substantial evidence standard,

Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021), which means they are

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary,” 8 U.S.C. § 1252(b)(4)(B). Substantial evidence supports the BIA

affirming the IJ’s denial of asylum and withholding of removal.

At issue in this appeal is the requirement that past or future persecution is on

account of petitioners’ membership in a particular social group (PSG). The BIA

found that even assuming Ms. Reza-Paniagua’s suggested PSG is cognizable, she

failed to establish a nexus. The record does not compel a different conclusion. Ms.

Reza-Paniagua’s testimony at the IJ’s hearing lacked detail indicating that her

membership in a PSG motivated her alleged persecutors. In her testimony, she

indicated that she did not know what motivated the gang that attacked her boyfriend

and that the gang acted with general criminal motivations, not specifically targeted

at her PSG. She testified that the gang kills both men and women and forces both

men and women to cultivate crops. Ms. Reza-Paniagua offered no evidence of the

1 Ms. Reza-Paniagua raises some arguments that do not relate to the BIA’s decision and are, therefore, not reviewable by this court.

2 gang’s motivations beyond general criminal motives. “[A person’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.” Zetino v. Holder, 596 F.3d 517,

528 (9th Cir. 2010). The record does not compel the conclusion that the harm was

motivated by her membership in any PSG.

Because petitioners did not raise any argument related to their CAT claim in

their opening brief, they have waived this claim. Corro-Barragan v. Holder, 718

F.3d 1174, 1177 n.5 (9th Cir. 2013); Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th

Cir. 2013) (arguments on CAT relief waived because not addressed in brief). Waiver

can be overcome when there is no prejudice to the opposing party or in order to avoid

a manifest injustice. Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004). Neither

exception applies here because the government would be prejudiced by not having

had an opportunity to respond to CAT arguments and there is no risk of a manifest

injustice. The petitioners have forfeited any arguments pertaining to the denial of

protection under the CAT.

PETITION FOR REVIEW DENIED.