Rosario Hernandez Garcia v. Eric Holder, Jr. , 409 F. App'x 94 ( 2010 )

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                                                                             FILED
NOT FOR PUBLICATION                              NOV 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSARIO HERNANDEZ GARCIA; )                   No. 09-72152
KEYLLA PAOLA ROSALES         )
HERNANDEZ; MIGUEL ERNESTO)                    Agency Nos. A076-857-334
ROSALES HERNANDEZ,           )                            A077-841-119
)                            A077-841-192
Petitioners,            )
)                MEMORANDUM*
v.                      )
)
ERIC H. HOLDER Jr., Attorney )
General,                     )
)
Respondent.             )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 1, 2010
Seattle, Washington
Before:        B. FLETCHER, FERNANDEZ, and BYBEE, Circuit Judges.
Rosario Hernandez Garcia, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ denial of her application for asylum,1
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1

8 U.S.C. § 1158

.
and for withholding of removal2 relief.3 We deny the petition.
The BIA’s determination that an alien is not eligible for asylum must be
upheld if “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias,

502 U.S. 478

, 481,

112 S. Ct. 812

, 815,

117 L. Ed. 2d 38

 (1992) (citation omitted). “It can be reversed only
if the evidence presented . . . was such that a reasonable factfinder would have to
conclude that the requisite fear of persecution existed.” Id.; see also Farah v.
Ashcroft,

348 F.3d 1153

, 1156 (9th Cir. 2003). When an alien seeks to overturn
the BIA’s adverse determination, “he must show that the evidence he presented
was so compelling that no reasonable factfinder could fail to find the requisite fear
of persecution.” Elias-Zacarias,

502 U.S. at

483–84,

112 S. Ct. at 817

. When an
asylum claim is involved, an alien must show either past persecution or a well
founded fear of future persecution that is “subjectively genuine and objectively
reasonable.” Fisher v. INS,

79 F.3d 955

, 960 (9th Cir. 1996) (en banc); see also
Gu v. Gonzales,

454 F.3d 1014

, 1019 (9th Cir. 2006).
Hernandez has not met her burden. She did submit evidence that close
2

8 U.S.C. § 1231

(b)(3).
3
Because the petitions of Keylla Paola Rosales Hernandez, her daughter, and
Miguel Ernesto Rosales Hernandez, her son, are derivative of hers, we do not
consider them separately. They stand or fall with hers.
2
family members, who were serving in the Guatemalan army, had been killed, and
that she had been threatened by unknown individuals and had been attacked by
unknown individuals some four years later. However, nothing said or written by
her attackers indicated that they knew of her military connection, that they knew
her by name, or that they imputed any political opinion to her. A reasonable
factfinder could determine that she had not spelled out a nexus between their
actions and a protected ground. See Gormley v. Ashcroft,

364 F.3d 1172

, 1177
(9th Cir. 2004); Ochave v. INS,

254 F.3d 859

, 865–66 (9th Cir. 2001); Sangha v.
INS,

103 F.3d 1482

, 1490–91 (9th Cir. 1997). Thus, a finding of past persecution
was not compelled. Elias-Zacarias,

502 U.S. at

481 n.1,

112 S. Ct. at

815 n.1;
Parussimova v. Mukasey,

555 F.3d 734

, 742 (9th Cir. 2009).
Because the BIA correctly determined that Hernandez did not meet the
requirements for a grant of asylum, it properly determined that she did not meet the
requirements for withholding of removal either. See Pedro-Mateo v. INS,

224 F.3d 1147