Viky Alvarez De Moreno v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2020
• Docket: 18-73474
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VIKY ROSIBEL ALVAREZ DE No. 18-73474 MORENO, JEFREY JARED NAVARRO ALVAREZ, SUGEY ROSIBEL MORENO Agency Nos. A089-092-071, A208- ALVAREZ, and LISBETH ONEYDA 928-593, A208-928-597, A208- RODRIGUEZ ALVAREZ, 928-600

Petitioners, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 11, 2020** San Francisco, California

Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.

Lead Petitioner Viky Rosibel Alvarez de Moreno (de Moreno) seeks review

* 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. of an order of the Board of Immigration Appeals (BIA).1 The BIA affirmed the

decision of an Immigration Judge (IJ) denying her family’s applications for asylum

and withholding of removal under the Immigration and Nationality Act (INA) and

protection under the Convention Against Torture. De Moreno petitioned this court

to review only the denial of asylum and withholding of removal. We have

jurisdiction under 8 U.S.C. § 1252(a).

1. The BIA determined that the purported group of “persons who assisted the

police force by supplying food for many years” is not a cognizable group as the basis

for a claim of protection from persecution under the INA. As demonstrated by de

Moreno’s experience, one can voluntarily cease supplying food to the police, so this

proposed group lacks immutability. See Hernandez-Montiel v. INS, 225 F.3d 1084,

1092–93 (9th Cir. 2000) (explaining a characteristic is immutable if one “either

cannot or should not be required to change it”), overruled on other grounds by

Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc). The BIA did not err

in finding this proposed group non-cognizable.

2. The BIA also determined that there was no nexus between de Moreno’s

family and her extortion by gang members in El Salvador. “An alien’s desire to be

free from harassment by criminals motivated by theft or random violence by gang

1 The consolidated petitioners also include de Moreno’s adult daughter, Sugey Rosibel Moreno Alvarez, minor son, Jefrey Jared Navarro Alvarez, and adult niece, Lisbeth Oneyda Rodriguez Alvarez.

2 members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010). De Moreno’s family membership was not a reason for the

extortion, as shown by the lack of extortion of other family members and de

Moreno’s repeated statements to the BIA that her family was targeted by gang

members because they provided support and food to the police. The BIA did not err

by finding no nexus between criminal activity and de Moreno’s family.

3. We do not have jurisdiction to evaluate the claim in de Moreno’s Brief to

us that she was persecuted for an imputed political belief of supporting the police.

We are barred “from reaching the merits of a legal claim not presented in

administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004). De Moreno did not raise this argument in her pro se asylum application, her

hearing before the IJ, or through her counseled brief to the BIA. Because the claim

was not exhausted at the administrative level, we do not reach its merits. Ibid.

We DENY the petition for review and affirm the decision of the BIA.