Luisa Baca-Baca 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NOT FOR PUBLICATION FILED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
LUISA BACA-BACA; JOAN ENRIQUE No. 18-71793
MARTINEZ-BACA,
Agency Nos. A208-980-041
Petitioners, A208-980-040
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,*** District Judge.
Luisa Baca-Baca (“Baca-Baca”) and her 15-year-old son Joan Enrique
Martinez-Baca (“Joan”), citizens and natives of Honduras, petition for review 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 Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
the Board of Immigration Appeals’ (“BIA”) denial of their appeal from the
Immigration Judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Baca-Baca testified that she was in a 33-year relationship with Oswaldo
Martinez (“Oswaldo”), who physically and emotionally abused her and sexually
assaulted her. In March 2016, the Mara 18 gang beat Joan and threatened to kill
him and his mother after he resisted their efforts to recruit him. Baca-Baca took
Joan to the United States, where they were charged with removability as aliens
present in the United States without having been admitted or paroled. The IJ
denied their applications for asylum and withholding of removal, citing a partial
adverse credibility determination, Baca-Baca’s failure to establish a nexus to a
protected group, and Joan’s failure to show that his proposed social group was
distinct. The IJ further denied their application for protection under the
Convention Against Torture (“CAT”). The BIA affirmed, denying Baca-Baca and
Joan’s request for humanitarian asylum as well.
Substantial evidence supports the credibility determination. Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011). The IJ based his adverse credibility
determination on relevant factors, including Baca-Baca’s demeanor and
inconsistencies between her oral and written statements. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Baca-Baca’s failure to remember whether Oswaldo resumed
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the abuse within a matter of days or years after his arrest could not be excused by
“the normal limits of human understanding and memory.” Shrestha v. Holder, 590
F.3d 1034, 1044 (9th Cir. 2010). Furthermore, the IJ determined that Baca-Baca
was “unduly nervous,” and that she testified in a “rather hurried and agitated way,”
speaking before the translation was completed. We afford credibility
determinations based on an applicant’s demeanor “special deference.” Singh-Kaur
v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999) (citation omitted). Baca-Baca’s
argument that she only spoke before the translation was completed three times
does not compel the opposite conclusion.
In addition, Baca-Baca has not established a due process claim. The IJ
properly gave Baca-Baca the opportunity to explain the inconsistencies during the
June 19, 2017 hearing on direct and cross-examination, and the IJ reasonably
concluded that Baca-Baca did not “offer[] a reasonable and plausible explanation
for the apparent discrepancy.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2010)
(quoting Soto-Olarte v. Holder, 555 F.3d 1089, 1091–92 (9th Cir. 2009)).
Nor has Baca-Baca established a nexus to a protected ground. Substantial
evidence supports the BIA’s determination that Baca-Baca was not a member of
the social group “Honduran women in domestic relationships who are unable to
leave the relationship” because she successfully left when she went to stay with her
mother. Regarding the other proposed social groups, Baca-Baca’s opening brief
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did not support these issues with argument, so they are waived. See Martinez-
Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).
Likewise, substantial evidence supports the BIA’s conclusion that Joan did
not show that the proposed group “Honduran boys who have resisted recruitment
by the Mara 18 gang” was socially distinct. “[A]n applicant for asylum or
withholding of removal seeking relief based on ‘membership in a particular social
group’ must establish that the group is (1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Cordoba v. Barr, 962 F.3d 479, 482 (9th
Cir. 2020) (footnote omitted) (quoting Matter of M-E-V-G-, 26 I.&N. Dec. 227,
237 (BIA 2014)). The background evidence Joan cited before the IJ suggests that
Honduran boys are attacked for refusing to join gangs but does not show that
Honduran society generally recognizes them as a distinct group. See Conde
Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020).
Substantial evidence also supports the BIA's determination that Baca-Baca
and Joan did not establish a clear probability of torture by or with the acquiescence
or willful blindness of a government official under the CAT. The IJ properly
considered the portions of the testimony deemed to be credible as well as
background evidence as required. See Aguilar-Ramos v. Holder, 594 F.3d 701,
705 (9th Cir. 2010). Joan and Baca-Baca point to no evidence that would compel
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the panel to conclude that they would, more likely than not, be subject to torture on
return to Honduras. Singh v. Whitaker, 914 F.3d 654, 662–63 (9th Cir. 2019); 8
C.F.R. § 208.18(a)(1).
Finally, the BIA concluded that Baca-Baca and Joan were not eligible for
humanitarian asylum because they failed to establish past persecution. To qualify
for a discretionary grant of humanitarian asylum, petitioners must establish past
persecution on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)(iii)(A),
(B). Because substantial evidence supports the BIA’s conclusion that Baca-Baca
did not establish a nexus between the alleged persecution and her social group, and
that Joan did not establish that his proposed group was distinct, Petitioners
necessarily could not show past persecution on account of their membership in
those groups.
PETITION DENIED.
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