Vilma Nieto-Silva v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 9, 2021
• Docket: 20-71886
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VILMA DEL CARMEN NIETO-SILVA; No. 20-71886 INGRID NAYELI AYALA-NIETO, Agency Nos. A208-546-004 Petitioners, A208-546-005

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

Respondent.

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

Submitted July 6, 2021** Honolulu, Hawaii

Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.

Petitioner Vilma Del Carmen Nieto-Silva (“Nieto-Silva”) and her minor

daughter, both natives and citizens of El Salvador, petition for review from an

order of the Board of Immigration Appeals (“BIA”) upholding the denial of their

* 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). claims for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and

we deny the petition.

In their opening brief, Petitioners did not challenge the BIA’s conclusion

that Petitioners had failed to establish a nexus between a protected ground and their

past or feared harm. The government highlighted this omission in its answering

brief, contending Petitioners waived any challenge to the nexus determination.

Petitioners have done nothing to attempt to remedy their omission—indeed, they

filed no reply brief at all. Accordingly, we hold that Petitioners waived any

challenge to the BIA’s lack-of-nexus determination. See Cui v. Holder, 712 F.3d

1332, 1338 n.3 (9th Cir. 2013) (holding that the petitioner “waived any objections”

to the denial of withholding of removal or CAT relief by not addressing either

issue in his brief). Because nexus is an essential element of claims for asylum and

withholding of removal, the BIA’s unchallenged lack-of-nexus determination is

dispositive on these two claims.1 See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).

As for Petitioners’ CAT claim, the BIA’s denial was supported by

substantial evidence. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir.

1 Because we uphold the BIA’s denial of Petitioners’ claims for asylum and withholding of removal on lack-of-nexus grounds, we do not reach the BIA’s alternative conclusion that Petitioners were ineligible for relief because they failed to demonstrate that they belonged to a cognizable social group.

2 2016). The BIA denied CAT relief after concluding that Nieto-Silva had not

experienced past harm rising to the level of torture and that Petitioners’ prospect of

future torture by or with the acquiescence of a public official was too speculative.

The evidence does not “compel a different conclusion.” Zheng v. Holder, 644 F.3d

829, 835 (9th Cir. 2011). Gang members’ unsuccessful attempt to extort Nieto-

Silva does not meet the high bar for constituting torture under CAT. See Diaz-

Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020) (“Torture is any act by

which severe pain or suffering is intentionally inflicted for such purposes as

obtaining information or a confession, punishing an act committed or one

suspected of having been committed, intimidating or coercing, or for any reason

based on discrimination of any kind.”). And by Nieto-Silva’s own account, her

mother, her eldest daughter, and her son-in-law remain in El Salvador and have

lived in relative safety. This testimony undercuts Petitioners’ claim that future

torture is likely if Petitioners are returned to El Salvador.

PETITION DENIED.