Erkia Moran Esquivel v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERKIA PATRICIA MORAN ESQUIVEL, No. 16-71145
AKA Erika Morales Esquival, AKA Erika
Martinez, AKA Erika Morales, AKA Erica Agency No. A078-106-865
Patricia Moran Henrriquez, AKA Erika
Patricia Moran Henrriquez,
MEMORANDUM*
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2022**
Pasadena, California
Before: SCHROEDER, S.R. THOMAS, and BEA, Circuit Judges.
Petitioner Erika Moran Esquivel seeks review of the Board of Immigration
Appeals (“BIA”) dismissal of her appeal of an Immigration Judge’s (“IJ”) decision
*
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).
denying her application for withholding of removal.1 We have jurisdiction under 8
U.S.C. § 1252. We deny the petition for review.
1. Petitioner argues that the BIA abused its discretion by affirming the IJ’s
denial of her motion for a continuance, which was based on Petitioner’s outstanding
application for a U visa. We reject the government’s argument that this issue is
moot, as the record contains no details concerning Petitioner’s U visa claim or
application status. However, Petitioner had previously been granted two
continuances, and no relief for Petitioner was immediately available, as Petitioner’s
U visa application had not been acted upon at the time of the merits hearing on July
31, 2014, even though the U visa application had been filed on March 19, 2014.
Accordingly, the BIA did not abuse its discretion. See Cui v. Mukasey, 538 F.3d
1289, 1292 (9th Cir. 2008).
2. Substantial evidence supports the BIA’s decision to uphold the IJ’s denial
of withholding of removal. Petitioner argues membership in a particular social
group loosely defined as “Honduran woman combined with Petitioner’s kinship ties
and resisting gang oppression.” However, this is not a cognizable proposed social
group. See, e.g., Ramos Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009) (“We
have recently held, however, that resistance to gang membership is not a protected
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While the case caption reads “Erkia Patricia Moran Esquivel,” Petitioner indicates
her first name is spelled “Erika.”
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ground.”). Moreover, even assuming this proposed group is cognizable, Petitioner
has failed to establish a nexus between the proposed group and fear of future
persecution. Petitioner testified that her son was recruited by the Honduran gang
MS-13 because “he’s a young man.” Petitioner testified that her brother was
previously attacked by MS-13 for not paying a “war tax” to the gang, but that since
her brother has begun paying the “war tax,” he has not experienced any further
problems. The BIA did not err in finding that these harms were the result of
generalized gang violence in the country, and were therefore not particular to any
group.
3. Petitioner argues that she is “a devout member of a subsection of the
Catholic religion” known as “Santa Muerte,” as evidenced by a tattoo on her back,
and that MS-13 views her Santa Muerte tattoo as a sign of “membership in a rival
gang.” The BIA affirmed the IJ’s “determination that the applicant’s fear of harm
on the basis of religion, actual or imputed—based on her tattoo—is speculative.”
Substantial evidence supports the BIA’s conclusion, as Petitioner has not testified to
any instances of threatened or actual harm she or anyone she knows has suffered on
account of Santa Muerte tattoos, and furthermore, Petitioner has previously
disclaimed any belief in the Santa Muerte religion itself.
PETITION FOR REVIEW DENIED
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