Micaela Nicolas-Juan v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICAELA AMADA NICOLAS-JUAN; No. 18-71078
MARIA ISABEL NICOLAS-JUAN,
Agency Nos. A202-058-471
Petitioners, A202-058-472
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 11, 2020**
Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.
Petitioners Micaela Amada Nicolas-Juan and Maria Isabel Nicolas-Juan,
natives and citizens of Guatemala, seek review of the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). Petitioners fear mistreatment by an abusive uncle, who began stalking,
harassing, and threatening Petitioners after his wife and children left him to live with
Petitioners at their grandmother’s home in Guatemala. We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition.
Substantial evidence supports the agency’s denial of asylum and withholding.
See Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (reviewing asylum and
withholding decisions for substantial evidence). Even crediting the uncle’s abuse as
persecution, the record does not compel its attribution to a protected ground. See 8
U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C), 1252(b)(4); INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992) (“To reverse the BIA finding we must find that the evidence
not only supports that conclusion, but compels it.” (emphasis in original)).
Of Petitioners’ three proposed social groups,1 substantial evidence supports
the agency’s finding that two of them—“immediate family members of someone
who has provided support to women who are unable to leave their relationship” and
“Guatemalan girls who are viewed as property”—respectively lack the particularity
and evidence of membership necessary to confer protection. See Reyes v. Lynch,
842 F.3d 1125, 1136–38 (9th Cir. 2016) (reviewing “particularity” ruling for
1
Petitioners originally proposed eight social groups; however, because
their opening brief only addresses three of them, we do not consider the other five.
See Sung Kil Jang v. Lynch, 812 F.3d 1187, 1189 n.1 (9th Cir. 2015) (treating
arguments not raised in petitioner’s opening brief as waived).
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substantial evidence); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir.
2020) (rejecting categorical exclusion of domestic violence victims as particular
social group while affirming that “the BIA must conduct the proper particular social
group analysis on a case-by-case basis”). We likewise find that, though Petitioners’
familial membership may be cognizable, see Santos-Lemus v. Mukasey, 542 F.3d
738, 743 (9th Cir. 2008) (assuming cognizability of family membership), abrogated
on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013)
(en banc), the evidence that several relatives, including Petitioners’ aunt, have
remained in Guatemala without incident supports the agency’s finding of no nexus
to their uncle’s abuse. See id. (considering a relative’s “continuing safety” in country
of removal to be a “persuasive factor”); Tamang v. Holder, 598 F.3d 1083, 1094 (9th
Cir. 2010) (finding it “especially significant” that the petitioner’s family voluntarily
returned to country of removal and continued to live there unharmed).
Nor is CAT relief required here. See 8 C.F.R. §§ 1208.16(c), 1208.18(a)(1).
Guatemala’s inadequate domestic-violence protections notwithstanding, Petitioners
point to no evidence that the uncle acted as, at the behest of, or with the acquiescence
of the Guatemalan government. See id. § 1208.18(a)(7) (“Acquiescence . . . requires
that the public official, prior to the activity constituting torture, have awareness of
such activity and thereafter breach his or her legal responsibility to intervene to
prevent such activity.”).
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PETITION DENIED.
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