Esmeralda Espinosa Molar v. Jeffrey Rosen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESMERALDA ESPINOSA MOLAR; et al., No. 18-71835
Petitioners, Agency Nos. A206-700-318
A206-700-319
v. A206-700-320
JEFFREY A. ROSEN, Acting Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2020
San Francisco, California
Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges.
Lead Petitioner Esmeralda Espinosa Molar and her children, Oscar Nava-
Espinoza1 and Jessica Vasquez Espinosa, seek review of an order 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 Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
1
The briefing and administrative record refer to Oscar’s last name inconsistently as
both Nava-Espinoza and Nava-Espinosa.
Immigration Appeals (BIA). The BIA affirmed a decision of an Immigration Judge
(IJ) denying Espinosa Molar’s application for asylum and withholding of removal
under the Immigration and Nationality Act (INA) and protection under the
Convention Against Torture (CAT). This court has jurisdiction under 8 U.S.C.
§ 1252.
The BIA adopted the IJ’s decision and added its own reasoning, so we review
both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005). We review
the factual findings underlying the decision for substantial evidence. Ibid. Because
substantial evidence supports the BIA’s decision, we deny Espinosa Molar’s petition
for review.
Espinosa Molar’s claim rested on the robbery, extortion, and kidnappings that
her family members suffered in Mexico at the hands of criminals who were likely
members of the Zetas cartel. She argued that the psychological harm she suffered
amounted to past persecution and that she had a well-founded fear of future
persecution based on her membership in a particular social group, specifically, her
family. Espinosa Molar also claimed that it is more likely than not that she would
be tortured with the acquiescence of the Mexican government if she returned.
1. Substantial evidence supports the BIA’s determination that Espinosa Molar
did not suffer past persecution. Although harm to close family members may be
relevant in assessing whether a petitioner has demonstrated past persecution,
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Tamang v. Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010), “the harm generally
must be inflicted to send the petitioner a message, cause the petitioner emotional
harm, or as part of a pattern of persecution closely tied to the petitioner.” Macias-
Padilla v. Sessions, 729 F. App’x 541, 543 (9th Cir. 2018) (citing Sumolang v.
Holder, 723 F.3d 1080, 1084 (9th Cir. 2013); Wakkary v. Holder, 558 F.3d 1049,
1059–60 (9th Cir. 2009); Njuguna v. Ashcroft, 374 F.3d 765, 770–72 (9th Cir.
2004)). Espinosa Molar was not threatened or harmed personally, and the criminal
activity her relatives experienced was not directed at or closely tied to her.
Therefore, she has not demonstrated that she suffered past persecution.
2. The BIA also determined that Espinosa Molar lacked a well-founded fear
of future persecution based on her family membership. This finding was similarly
supported by substantial evidence. “An alien’s desire to be free from harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
Espinosa Molar’s testimony about her family members’ cheese business and the
financial nature of the crimes they suffered support the BIA’s conclusion that her
relatives were targeted for monetary gain. Espinosa Molar’s fear of future criminal
activity lacks a nexus to her family membership as required for asylum and
withholding of removal under the INA.
3. The BIA further determined that Espinosa Molar was not eligible for CAT
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relief because she failed to demonstrate that it is more likely than not that she will
be tortured with the consent or acquiescence of the government upon return to
Mexico. See 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). This finding was also
supported by substantial evidence. Claims based on “generalized evidence of
violence and crime in Mexico” are insufficient to prove that it is more likely than
not that a petitioner will be tortured. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152
(9th Cir. 2010). Espinosa Molar’s testimony did not establish the necessary
likelihood that criminals will target her for torture if she returns to Mexico.
Therefore, Espinosa Molar does not qualify for CAT protection.
We DENY the petition for review and AFFIRM the decision of the BIA.
Accordingly, we DENY Espinosa Molar’s motion to stay removal as moot.
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