Yarely Gomez Ortuno v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YARELY GOMEZ ORTUNO; et al., No. 18-73008
Petitioners, Agency Nos. A208-604-427
A208-604-428
v. A208-604-429
ROBERT M. WILKINSON, Acting
Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 1, 2021**
Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Petitioner Yarely Gomez Ortuno (“Petitioner”) and her two minor children
seek review of the Board of Immigration Appeals’ dismissal of Petitioner’s appeal.1
*
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).
1
As the BIA noted, the co-petitioners are derivative beneficiaries of their mother’s
asylum application, so all references to “Petitioner” herein will be to Yarely Gomez
Ortuno.
Petitioner argues that the Immigration Judge (“IJ”) abdicated his role as a neutral
adjudicator, erred in failing to consider that Petitioner purportedly established a
nexus between a particular social group (“PSG”) and the alleged harm, erred in
concluding that Petitioner did not establish the basis of imputed political opinion,
erred in concluding that Petitioner did not establish why she could not relocate, and
failed to provide any assessment of Petitioner’s application under the Convention
Against Torture (CAT).2 We have jurisdiction under 8 U.S.C. § 1252(a), and we
deny the petition.3
First, the BIA correctly rejected Petitioner’s due process claim. See Jiang v.
Holder, 754 F.3d 733, 738 (9th Cir. 2014) (“Claims of due process violations in
immigration proceedings are … reviewed de novo.”). As the Board correctly noted,
Petitioner’s attorney questioned her at length with little interruption, and the IJ
provided the opportunity for redirect and admitted all her proffered documents into
evidence. And the BIA’s non-reliance on the IJ’s adverse credibility determination
2
Petitioner’s arguments focus exclusively on the IJ’s determinations, but “[w]here,
as here, the BIA conducts a de novo review of the record, our review is limited to
the decision of the BIA, except to the extent that the [IJ]’s decision is expressly
adopted by the Board.” Scales v. INS, 232 F.3d 1159, 1162 (9th Cir. 2000). We
therefore do not address Petitioner’s arguments that are unrelated to the BIA’s
grounds for its decision, including her relocation arguments and proposed PSG of
“family in which others had also been murdered by a gang in Mexico.” See Arrey
v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (“We cannot affirm the BIA on a ground
upon which it did not rely.” (internal quotation marks and citation omitted)).
3
The parties are familiar with the facts, so we do not repeat them here.
2
rendered any alleged prejudice harmless in any event. See id. at 741.
Second, substantial evidence supports the BIA’s determination that Petitioner
did not establish eligibility for asylum or withholding of removal. See Guo v.
Sessions, 897 F.3d 1208, 1212 (9th Cir. 2018). The evidence does not compel a
conclusion contrary to the BIA’s determination that Petitioner failed to establish the
requisite nexus between any protected ground and the single incident of gang
violence that involved Petitioner—a late-night shooting at a bar while she, her
husband, and friends were there—or why it occurred.4 Jiang, 754 F.3d at 738
(noting the substantial evidence “standard of review is extremely deferential:
administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary” (internal quotation marks and
citations omitted)). Petitioner admits that she does not know who was involved with
the shooting or why it happened. Nor does the evidence compel the conclusion that
Petitioner herself was targeted. The lack of nexus to her proposed PSGs or any
alleged imputed political opinion disposes of her asylum and withholding of removal
4
Petitioner also discusses the murder of her brother-in-law in support of her nexus
arguments, but the record does not indicate that the murder was tied to a protected
ground and Petitioner admits that the murder resulted from a gang war. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (per curiam)
(“Asylum is not available to victims of indiscriminate violence, unless they are
singled out on account of a protected ground.”); Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010) (“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.”).
3
claims. Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017); Riera-Riera
v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016); 8 U.S.C. §§ 1158(b)(1)(B)(i);
1231(b)(3)(A).
Separately, with respect to Petitioner’s proffered PSG comprised of “family
members of a state actor involved with organized crime,” the record does not compel
a conclusion contrary to the BIA’s determination that Petitioner failed to establish
the requisite social distinction. See Conde Quevedo v. Barr, 947 F.3d 1238, 1242
(9th Cir. 2020) (whether evidence supports societal recognition of a proposed social
group reviewed for substantial evidence). Neither Petitioner’s summary,
unsupported conclusion that “this group is not one that is easily associated with the
general population,” nor Petitioner’s submitted documentary evidence, compels the
conclusion that society recognizes this PSG. See Diaz-Torres v. Barr, 963 F.3d 976,
981 (9th Cir. 2020) (“Nothing in the record addresses whether Mexican society
views either of [the petitioner]’s proposed social groups as distinct.… To the
contrary, the evidence paints a picture of all segments of the Mexican population
being adversely affected by the brutality of drug cartels.”).5
Third, substantial evidence supports the BIA’s determination that Petitioner
failed to establish a likelihood of torture at the instigation or acquiescence of the
5
Given the lack of nexus, we do not address whether Petitioner’s other proposed
PSGs are cognizable in this case.
4
government upon a return to Mexico. See Guo, 897 F.3d at 1212;
8 C.F.R. §§ 1208.18(a)(1); 1208.16. Petitioner did not present any evidence of past
torture or of personal harm or threats directed at her, and sole reliance on some
generalized risk of violence does not satisfy her burden for obtaining protection
under CAT. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per
curiam) (“Petitioners’ generalized evidence of violence and crime in Mexico is not
particular to Petitioners and is insufficient to meet this standard …. establish[ing]
that it is more likely than not that they would be tortured if returned to Mexico.”).
PETITION DENIED.
5