Zenaida Chule-Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2021
• Docket: 20-70987
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 16 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZENAIDA ESPERANZA CHULE- No. 20-70987 LOPEZ, AKA Zenaida Esperanza Chilel Lopez; MARTA ALICIA CHULE-LOPZ, Agency Nos. A208-589-358 AKA Marta Alicia Chule-Lopez, AKA A208-589-359 Marta Alicia Chilel Lopez,

Petitioners, MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 7, 2021** Seattle, Washington

Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.

* 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). Petitioner Zenaida Esperanza Chule-Lopez (“Lead Petitioner”) and her

minor daughter (together, “Petitioners”), are natives and citizens of Guatemala.

They petition for review of the Board of Immigration Appeals’ (“BIA”) decision

affirming the order of an immigration judge (“IJ”) denying their applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and deny the

petition for review.

First, Petitioners argue that the BIA erred by failing to review on appeal

Petitioners’ objection to the IJ’s decision to exclude from evidence two

declarations. We conclude that while the BIA erred by failing to address this

objection, the error was harmless because the Petitioners did not demonstrate that

they were prejudiced by the exclusion. See Kaur v. Wilkinson, 986 F.3d 1216,

1229 (9th Cir. 2021) (“[t]he BIA is not free to ignore arguments raised by a

petitioner” (internal quotations and citations omitted)); Pagayon v. Holder, 675

F.3d 1182, 1191-92 (9th Cir. 2011) (finding that the IJ’s exclusion of evidence and

testimony did not amount to a due process violation because the petitioner did not

establish prejudice).

Second, Petitioners’ brief recited the legal standard governing CAT claims,

but did not provide any argument why the BIA erred in denying CAT protection.

2 Accordingly, we deem any argument as to this claim waived. See Corro-Barragan

v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013).

Third, even assuming that the BIA erred in rejecting Lead Petitioner’s

proposed particular social group (“PSG”) of “female victims of domestic violence

or gender based violence,” the record does not compel the conclusion that Lead

Petitioner’s former domestic partner abused her on account of this PSG or her

identity as an indigenous Guatemalan.

Finally, the BIA’s determination that Petitioners failed to establish a pattern

or practice of persecution against indigenous Guatemalan women is supported by

substantial evidence. The country conditions evidence in the record demonstrates

that indigenous Guatemalans, and particularly women, experience discrimination,

but does not compel the conclusion that this discrimination amounts to persecution.

PETITION DENIED.