Viky Alvarez De Moreno v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKY ROSIBEL ALVAREZ DE No. 18-73474
MORENO, JEFREY JARED NAVARRO
ALVAREZ, SUGEY ROSIBEL MORENO Agency Nos. A089-092-071, A208-
ALVAREZ, and LISBETH ONEYDA 928-593, A208-928-597, A208-
RODRIGUEZ ALVAREZ, 928-600
Petitioners,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Lead Petitioner Viky Rosibel Alvarez de Moreno (de Moreno) seeks review
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
of an order of the Board of Immigration Appeals (BIA).1 The BIA affirmed the
decision of an Immigration Judge (IJ) denying her family’s applications for asylum
and withholding of removal under the Immigration and Nationality Act (INA) and
protection under the Convention Against Torture. De Moreno petitioned this court
to review only the denial of asylum and withholding of removal. We have
jurisdiction under 8 U.S.C. § 1252(a).
1. The BIA determined that the purported group of “persons who assisted the
police force by supplying food for many years” is not a cognizable group as the basis
for a claim of protection from persecution under the INA. As demonstrated by de
Moreno’s experience, one can voluntarily cease supplying food to the police, so this
proposed group lacks immutability. See Hernandez-Montiel v. INS, 225 F.3d 1084,
1092–93 (9th Cir. 2000) (explaining a characteristic is immutable if one “either
cannot or should not be required to change it”), overruled on other grounds by
Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc). The BIA did not err
in finding this proposed group non-cognizable.
2. The BIA also determined that there was no nexus between de Moreno’s
family and her extortion by gang members in El Salvador. “An alien’s desire to be
free from harassment by criminals motivated by theft or random violence by gang
1
The consolidated petitioners also include de Moreno’s adult daughter, Sugey
Rosibel Moreno Alvarez, minor son, Jefrey Jared Navarro Alvarez, and adult niece,
Lisbeth Oneyda Rodriguez Alvarez.
2
members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010). De Moreno’s family membership was not a reason for the
extortion, as shown by the lack of extortion of other family members and de
Moreno’s repeated statements to the BIA that her family was targeted by gang
members because they provided support and food to the police. The BIA did not err
by finding no nexus between criminal activity and de Moreno’s family.
3. We do not have jurisdiction to evaluate the claim in de Moreno’s Brief to
us that she was persecuted for an imputed political belief of supporting the police.
We are barred “from reaching the merits of a legal claim not presented in
administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). De Moreno did not raise this argument in her pro se asylum application, her
hearing before the IJ, or through her counseled brief to the BIA. Because the claim
was not exhausted at the administrative level, we do not reach its merits. Ibid.We DENY the petition for review and affirm the decision of the BIA.
3