Petrona Andres-Gaspar v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETRONA ANDRES-GASPAR; et al., No. 19-73214
Petitioners, Agency Nos. A209-276-994
A209-276-995
v. A209-276-996
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2020**
Seattle, Washington
Before: McKEOWN and BUMATAY, Circuit Judges, and MOSMAN,*** District
Judge.
Petrona Andres-Gaspar, a native and citizen of Guatemala and lead
respondent, and her two minor children petition for review of the Board of
*
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 Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”)
denial of her application for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). See 8 U.S.C. §§ 1158(b)(1)(A),
1231(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18(a).1 The parties are familiar with
the facts, so we do not repeat them here. We have jurisdiction under 8 U.S.C.
§ 1252(a) and we deny the petition.
Where, as here, the BIA issues its own decision but relies in part on the IJ’s
reasoning, we review the BIA’s decision and the IJ’s decision to the extent
adopted. See Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012) (citing
Alaelua v. INS, 45 F.3d 1379, 1382–83 (9th Cir. 1995)). We review the BIA’s
legal conclusions de novo and factual findings for substantial evidence. Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Denial of
asylum, withholding of removal, and CAT claims are reviewed for substantial
evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Under
this standard, we uphold the agency’s determination unless the record compels a
contrary conclusion. Id.Even assuming her proposed social group were legally cognizable, Andres-
1
Andres-Gaspar’s asylum application extends to her children as derivative
beneficiaries. See 8 C.F.R. § 1208.3(a). Derivative relief for withholding of
removal and under CAT is unavailable. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1
(9th Cir. 2005).
2
Gaspar’s asylum and withholding of removal claims fail for lack of the requisite
nexus: substantial evidence supports the BIA and IJ’s determination that Andres-
Gaspar’s former partner abused her to drive her out of his mother’s house so he
could move in with his new girlfriend, and not on account of a protected
ground. The record does not compel the conclusion that Andres-Gaspar’s
membership in the proposed particular social group was a reason, central or
otherwise, for the abuse. See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.
2009) (“The Real ID Act requires that a protected ground represent ‘one central
reason’ for an asylum applicant’s persecution”); Barajas-Romero v. Lynch, 846
F.3d 351, 358–59 (9th Cir. 2017) (holding that withholding of removal requires the
less demanding nexus standard of “a reason,” rather than “one central reason”).
We need not reach the other issues related to the asylum and withholding of
removal claims.
Nor is CAT relief warranted. Even if, contrary to the government’s
assertion, Andres-Gaspar did not waive her CAT claim on appeal, substantial
evidence supports the finding that, based on the entirety of the record, Andres-
Gaspar failed to demonstrate that it was more likely than not that she would be
tortured in Guatemala. See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018)
(“To obtain relief under CAT, a petitioner must prove that it is more likely than not
that he or she will be tortured in the country of removal.”).
3
PETITION DENIED.
4