Maria Cardenas v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
APR 7 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ISABEL CARDENAS, No. 20-72766
Petitioner, Agency No. A077-126-728
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2022**
Pasadena, California
Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.
Petitioner Maria Cardenas, a native of Mexico and lawful permanent
resident of the United States, petitions for review of the Board of Immigration
Appeals’ (BIA) denial of her application for asylum, withholding of removal, and
*
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).
protection under the Convention Against Torture (CAT). Cardenas was subject to
a removal order for the offense of harboring an alien who was in the country “in
violation of law.” 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(I). In denying her relief
on all three grounds, the BIA explicitly adopted the immigration judge’s findings
on each issue, and we thus review the immigration judge’s decision as if it were the
BIA’s. See Alam v. Garland, 11 F.4th 1133, 1135 (9th Cir. 2021).
As to asylum, the immigration judge held that Cardenas had committed an
aggravated felony and was thus ineligible for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii),
(B)(i). Title 8 U.S.C. § 1101(a)(43) provides that any conviction under 8 U.S.C.
§ 1324(a)(1)(A) constitutes an aggravated felony, and as the immigration judge
found, Cardenas was convicted of violating 8 U.S.C. § 1324(a)(1)(A)(iii).
Cardenas does not contest the finding in the argument section of her brief and has
thus forfeited the issue. See, e.g., Floyd v. Filson, 949 F.3d 1128, 1138 n.2 (9th
Cir. 2020) (recognizing that issues not raised in an opening brief are forfeited).
As to withholding of removal, the immigration judge denied relief because
Cardenas had failed to show membership in a particular social group, and was thus
ineligible for withholding. Cardenas also fails to challenge this determination in
her opening brief and has forfeited any challenge to the immigration judge’s
decision on withholding. See, e.g., id.2
With respect to CAT, the immigration judge denied relief both because it
was not more likely than not that Cardenas would be tortured upon returning to
Mexico, and because it had not been shown that Mexico would instigate or
acquiesce to any torture of Cardenas. As the immigration judge recognized,
Cardenas faced no past harm in Mexico; the reason she fears returning to Mexico
stems from events that took place in the United States, and under Cardenas’s own
testimony, she was never harmed, let alone tortured, in the United States, even
though her alleged future torturers knew where she lived. The record does not
compel any contrary conclusions. Cardenas is not entitled to relief under CAT. See
Arrey v. Barr, 916 F.3d 1149, 1161 (9th Cir. 2019) (reviewing denial of CAT relief
under the substantial evidence standard of review).
The petition is DENIED.
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