Tobias v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 20, 2024
• Docket: 22-1574
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 20 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CECILIA YANETH TOBIAS- No. 22-1574 CALDERON, et al, Agency No. A208-674-303 Petitioners, Agency No. A208-674-304

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 15, 2024** San Francisco, California

Before: S.R. THOMAS, BEA, and CHRISTEN, Circuit Judges.

Petitioner Cecilia Yaneth Tobias-Calderon, and her minor son, Carlos

Tobias-Calderon, petition for review of the Board of Immigration Appeals’

* 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). (“BIA”) decision dismissing her appeal of an Immigration Judge’s (“IJ”) denial of

their applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Because the parties are familiar with the

factual and procedural history of the case, we need not recount it here.

Our jurisdiction is governed by 8 U.S.C. § 1252. “Where, as here, the BIA

reviewed the IJ’s factual findings for clear error, and reviewed de novo all other

issues, our review is ‘limited to the BIA’s decision, except to the extent the IJ’s

opinion is expressly adopted.’” Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir.

2019) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). The

agency’s factual findings are reviewed for substantial evidence and “are conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481

n.1 (1992). We review legal and constitutional questions de novo. Roy v. Barr,

960 F.3d 1175, 1181 (9th Cir. 2020). We deny the petition for review.

I

Substantial evidence supports the agency’s finding that Tobias-Calderon did

not establish a nexus between her feared harm and her proposed particular social

groups (“PSG”) of Salvadoran women without male protection or family members

of Carlos Antonio Cardoza. To be eligible for asylum or withholding of removal, a

2 noncitizen must show a nexus between her protected ground (e.g., race, religion,

social group) and her past or future persecution. See Barajas-Romero v. Lynch,

846 F.3d 351, 357–58 (9th Cir. 2017) (citing 8 U.S.C. § 1158(b)(1)(B)(i) (asylum)

and § 1231(b)(3)(A), (C) (withholding)). To meet the nexus requirement, a

noncitizen must show that her protected ground was “one central reason” (asylum)

or “a reason” (withholding of removal) that she has been or will be harmed. Id.

Here, the record supports the agency’s finding that the gang was motivated

by pecuniary interests to extort Tobias-Calderon rather than on account of her

PSGs. According to Tobias-Calderon, the 18th Street Gang “impose[d] rentas on

all the residents of El Mango,” which shows that the gang had a criminal motive

that was not specific to Tobias-Calderon. The continued threats by the gang

focused on Tobias-Calderon’s ability to pay rent, calling the police, or keeping the

gang’s name on her home. Further, the record suggests that the gang attempted to

kidnap Tobias-Calderon’s son because she failed to pay rent by the gang’s

deadline, which “does not compel finding that the [gang] threatened

[Tobias-Calderon and her son] because of a protected characteristic such as family

relation.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1019 (9th Cir. 2023).

Thus, substantial evidence supports the BIA’s finding that Tobias-Calderon failed

to establish the requisite nexus.

3 Because a “lack of a nexus to a protected ground is dispositive” of eligibility

for asylum and withholding of removal, we deny Tobias-Calderon’s petition. See

Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016).

II

Substantial evidence supports the agency’s determination that

Tobias-Calderon did not establish eligibility for CAT protection. To demonstrate

eligibility for CAT protection, an applicant must show “it is more likely than not

he or she would be tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(2); Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011).

Although Tobias-Calderon provided country condition documents that indicate

there is crime and violence in El Salvador, the reports are insufficient to establish

that Tobias-Calderon herself faces a particularized risk of torture. See Park v.

Garland, 72 F.4th 965, 980 (9th Cir. 2023) (“The record must show that it is more

likely than not that the petitioner will face a particularized and non-speculative

risk of torture.”). Thus, we deny Tobias-Calderon’s petition for CAT.

III

Tobias-Calderon did not exhaust her claim that the IJ violated due process

by failing to advise Tobias-Calderon that her I-589 did not act as an independent

application for her son. To exhaust a claim, an applicant “must first raise the issue

4 before the BIA or IJ.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir.

2003). Procedural due process claims that can be “remedied by the BIA are not

exempted from the exhaustion requirement.” Tall v. Mukasey, 517 F.3d 1115,

1120 (9th Cir. 2008). Here, Tobias-Calderon did not raise any due process

challenge regarding the IJ’s advisal to the BIA and instead expressly waived “an

advisal of rights in removal proceedings.” Because Tobias-Calderon did not put

the BIA on notice of her due process argument, it is unexhausted and this Court

cannot consider it for the first time on review. See Santos-Zacaria v. Garland, 598

U.S. 411, 416–23 (2023) (explaining that 8 U.S.C. § 1252(d)(1)’s exhaustion

requirement is mandatory, but not jurisdictional, and must be enforced if raised).

Accordingly, Tobias-Calderon’s due process argument is dismissed.

PETITION DENIED IN PART AND DISMISSED IN PART.