Irma Vicente Maldonado v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IRMA YOLANDA VICENTE No. 18-72233
MALDONADO; et al.,
Agency Nos. A202-159-776
Petitioners, A202-159-777
A202-159-778
v.
MERRICK GARLAND, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 2, 2021**
Pasadena, California
Before: TALLMAN and OWENS, Circuit Judges, and CHRISTENSEN,***
District Judge.
*
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 Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
Irma Vicente Maldonado and her two children challenge the Board of
Immigration Appeals’ (“the Board”) dismissal of her1 appeal. We have jurisdiction
under 8 U.S.C. § 1252. We review for substantial evidence, Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc), and will only reverse if
the evidence “not only supports a contrary conclusion, but compels it,” Garcia-
Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (citation, emphases, and
alteration omitted). We deny her petition.
1. Substantial evidence supports the Board’s conclusion that Vicente
Maldonado’s claims for asylum and withholding of removal fail because she did
not establish harm on account of her participation in a “cognizable particular social
group” or any other protected ground. The Board determined that Vicente
Maldonado’s purported social group—“female business owners”—lacked social
distinction and was not “perceived as a group by society.”
Vicente Maldonado argues that the Board overlooked that her particular
social group relies on gender, which she argues is an immutable characteristic. She
asserts that the 2016 Department of State, Guatemala Report makes clear that
Guatemalan society views women as socially distinct because it includes a section
1
Angela Abagail Xiquin Vicente and Carlos David Vicente Maldonado’s
applications for asylum are derivative of their mother’s because they are both
under the age of 21. Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).
2
that documents the country’s considerable problems with domestic violence, rape,
sexual harassment, and economic inequality.
We decline to decide whether, in Guatemala, gender persecution alone
establishes grounds for asylum.2 Vicente Maldonado’s purported social group of
female business owners ties her claims for asylum and withholding of removal to a
smaller subclass of women—women who own their own businesses. Yet Vicente
Maldonado points to no immutable characteristic unique to this subclass nor does
the record support her theory that Guatemalan society views female business
owners as a distinctive group.
2. The record does not compel reversal of the Board’s conclusion that
Vicente Maldonado is ineligible for relief under the Convention Against Torture.
The Board determined that Vicente Maldonado failed to produce evidence to show
the “mistreatment she fears from gangs constitutes torture by or at the instigation
of or with the consent and/or acquiescence (including the concept of willful
blindness) of a public official” or the Guatemalan government. Although Vicente
Maldonado credibly testified that she twice reported to the police that she had
received gang threats before the police took any action, we will not overturn the
2
To the extent Vicente Maldonado now asserts a particular social group based on
gender discrimination or her perceived vulnerability as a single mother, these
arguments were not brought before the Immigration Judge or the Board and are not
considered. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
3
Board’s decision where the record also indicates that the police planned to
investigate these threats after Vicente Maldonado’s third attempt to solicit their
involvement.
Vicente Maldonado’s petition is therefore DENIED.
4