Eneida Garcia Olvera v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENEIDA GARCIA OLVERA; et al., No. 18-71811
Petitioners, Agency Nos. A206-677-334
A206-677-331
v. A206-677-332
A206-677-333
WILLIAM P. BARR, Attorney General, A206-677-335
Respondent.
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 10, 2020**
Pasadena, California
Before: PARKER,*** CHRISTEN, and WATFORD, Circuit Judges.
Eneida Garcia Olvera (“Garcia Olvera”), Candelario Berduzco Garcia
(“Berduzco Garcia”), and their minor children (collectively, “Petitioners”) seek
*
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 Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
review of a final order of removal issued by the Board of Immigration Appeals
(“BIA”) in which the BIA upheld the immigration judge’s denial of Petitioners’
applications for asylum, withholding of removal, and protection under the
regulations implementing the Conventions Against Torture (“CAT”). This Court
has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),1 and we deny the petition.
We review for substantial evidence the BIA’s determination that Petitioners
are ineligible for asylum and withholding of removal and reverse “only if the
evidence in the record compels a contrary result.” See Parussimova v. Mukasey,
555 F.3d 734 (9th Cir. 2009) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.
1 (1992); Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir. 2004)).
Substantial evidence supports the BIA’s conclusion that Petitioners failed to
show that any harm they suffered was on account of their membership in a
particular social group or Berduzco Garcia’s imputed political opinion.
1
We reject Petitioners’ argument that pursuant to the Supreme Court’s
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the immigration judge
lacked jurisdiction over their removal proceedings because their Notices to Appear
did not include the date and time of their hearings. This Court acknowledged in
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), that Pereira’s holding was
limited to the application of the stop-time rule for cancellation of removal, which is
not an issue presented in, and therefore does not govern, this case. Id. at 1161.
Moreover, a notice to appear lacking information regarding the date and time of
the scheduled removal hearing, together with a subsequently served notice of
hearing—which Petitioners received—are sufficient to cure any alleged
jurisdictional defect. Id. at 1161-62.
2
Persecution on account of economic reasons—without more—is not a protected
ground for asylum or withholding of removal. See Zetino, 622 F.3d at 1016 (“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”);
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (noting that “victims
of indiscriminate violence” are not eligible for asylum “unless they are singled out
on account of a protected ground”); Barrios v. Holder, 581 F.3d 849, 856 (9th Cir.
2009) (finding no nexus where the evidence instead supported the conclusion that
the gang victimized the petitioner for economic reasons); Santos-Lemus v.
Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (“The available evidence suggests
instead that Santos-Lemus was victimized for economic and personal reasons.
These motivations do not constitute persecution on account of political opinion.”),
abrogated on other grounds by Henriquez-Rivas, 707 F.3d 1081 (9th Cir. 2013)
(en banc).
Petitioners have not identified any evidence, direct or circumstantial, that
compels the contrary conclusion that the gang persecuted them on account of a
statutorily protected ground. See Parussimova, 555 F.3d at 739. As Petitioners
failed to establish that their proposed particular social group and political opinion
was or would be a reason for their harm, substantial evidence supports the BIA’s
conclusion that Petitioners are not eligible for asylum or withholding of removal.
3
Substantial evidence also supports the BIA’s conclusion that Petitioners
failed to show that they will more likely than not suffer torture in Mexico. They
did not suffer torture in the past, and they did not establish a particularized threat
of torture with the consent or acquiescence of the Mexican government but instead
based their claim on country conditions showing general crime and violence—
neither of which are sufficient to compel a contrary conclusion. Delgado-Ortiz,
600 F.3d at 1152 (holding that generalized evidence of violence and crime in
Mexico is insufficient to meet the CAT standard because it was not particular to
the petitioners in that case).
We have considered Petitioners’ other arguments and conclude they are
without merit.
As stated in the Court's August 30, 2018 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED
4