Miriam Gomez Hernandez v. Jefferson Sessions ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       MAY 21 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MIRIAM MERCEDES GOMEZ                           No.    15-72181
    HERNANDEZ; KAREN ALIZETH
    MENDOZA GOMEZ,                                  Agency Nos.       A202-098-021
    A202-098-022
    Petitioners,
    v.                                             MEMORANDUM *
    JEFFERSON B. SESSIONS III, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted May 16, 2018**
    Seattle, Washington
    Before: BERZON, THACKER,*** and HURWITZ, Circuit Judges.
    Miriam Mercedes Gomez Hernandez, along with her minor daughter
    *
    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 Stephanie Dawn Thacker, United States Circuit Judge
    for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
    (“Petitioners”), seek review of the Board of Immigration Appeals (“BIA”) and
    immigration judge (“IJ”) decisions denying their applications for asylum,
    withholding of removal, and relief under the Convention Against Torture (“CAT”).
    We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for
    review because the BIA and IJ decisions are supported by substantial evidence.
    To be eligible for asylum, a petitioner must demonstrate she “is unable or
    unwilling to return to h[er] home country because of a well-founded fear of future
    persecution on account of race, religion, nationality, membership in a particular
    social group, or political opinion.” C.J.L.G. v. Sessions, 
    880 F.3d 1122
    , 1139 (9th
    Cir. 2018) (internal quotation marks omitted). “An applicant may establish a well-
    founded fear of future persecution in two ways: by proving past persecution, or by
    demonstrating that [s]he has a subjectively genuine and objectively reasonable fear
    of future persecution.” 
    Id. (internal quotation
    marks omitted).
    1. Both the IJ and the BIA found that Petitioners did not suffer past
    persecution. Petitioners have provided no evidence compelling a contrary finding.
    Indeed, Gomez Hernandez admitted she had not been harmed, threatened, harassed,
    or attacked in any way in Guatemala.
    2. We also reject Petitioners’ arguments that they faced, and will face in the
    future, economic and societal discrimination in Guatemala that rises to the level of
    persecution. Our decisions recognizing economic harm as persecution have been
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    grounded in an individualized showing of harm. See, e.g., Baballah v. Ashcroft,
    
    367 F.3d 1067
    , 1075 (9th Cir. 2004) (recognizing economic persecution where
    Israeli Marines “deliberately interfered” with petitioner’s attempts to maintain a
    fishing business by destroying his fishing nets, frightening his crew, and making
    sure he received unwarranted citations); Gonzalez v. INS, 
    82 F.3d 903
    , 906, 910 (9th
    Cir. 1996) (same, where petitioner “was forced to liquidate her business because she
    was denied the card she would need from the Ministry of Commerce to buy
    inventory”); see also Kovac v. INS, 
    407 F.2d 102
    , 104, 107 (9th Cir. 1969) (ordering
    reopening of immigration proceedings where petitioner alleged economic harm
    based on Yugoslavian police “contact[ing] his employers and caus[ing] him to lose
    several jobs as a chef, and [being] turned away when seeking employment while
    others less qualified were hired”). Petitioners have not demonstrated individualized
    economic harm.
    3. Petitioners also claim they are members of a disfavored group (that is, Maya
    who speak Mam), membership in which may establish a well-founded fear of
    persecution. Halim v. Holder, 
    590 F.3d 971
    , 977 (9th Cir. 2009). Even so,
    Petitioners were required to demonstrate that they, “in particular, [are] likely to be
    targeted as a member of that [disfavored] group,” and “some evidence of
    individualized risk is necessary for the petitioner to succeed.” 
    Id. at 977–978
    (internal quotation marks omitted) (emphasis in original). Petitioners have not made
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    that individualized showing.
    4. We also reject Petitioners’ argument that they have demonstrated a “pattern
    or practice of persecution against similarly situated individuals.”        Lolong v.
    Gonzales, 
    484 F.3d 1173
    , 1178 (9th Cir. 2007). “[W]e have required that petitioners
    alleging a pattern or practice of persecution by non-government actors also prove
    that the government is unable or unwilling to control those actors.” 
    Id. at 1180.
    Petitioners have not made this showing.
    5. Finally, we reject Petitioners’ argument that both the IJ and BIA violated
    their due process rights by not sufficiently explaining their reasoning or providing
    any meaningful analysis on the CAT claim. To the extent Petitioners make an
    argument regarding the IJ’s decision, they failed to raise this issue on appeal to the
    BIA, and therefore, we may not address it. See Barron v. Ashcroft, 
    358 F.3d 674
    ,
    678 (9th Cir. 2004) (because “due process challenge . . . was never presented below,
    we lack subject-matter jurisdiction to address it now”). To the extent they challenge
    the BIA’s cursory dismissal of the CAT claim, the challenge is without merit. See
    Alaelua v. INS, 
    45 F.3d 1379
    , 1382 (9th Cir. 1995) (“The adoption of a lower
    tribunal’s reasons is a valid practice on review.”).
    PETITION FOR REVIEW DENIED.
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