S. J. M.-d.C. v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
MAY 19 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
S. J. M.-D.C.; A. J. C.-M.; P.D.C.M., a Nos. 20-71799
minor, 21-821
Petitioners, Agency Nos. A209-238-527
A209-238-528
v. A209-238-529
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 19, 2023
San Francisco, California
Before: SCHROEDER, CALLAHAN, and BUMATAY, Circuit Judges.
Petitioners S. J. M.-D. C. and her two daughters, all citizens of El Salvador,
petition for review of the Board of Immigration Appeals’ (“BIA”) denial of asylum
and withholding of removal, and the BIA’s denial of their motion to reopen to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reapply for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”).
Substantial evidence supports the BIA’s determination that Petitioners failed
to establish a nexus between any harm they suffered and a protected ground. The
evidence showed that S. J. M.-D.C. was targeted on account of her opposition to
gangs, not on account of a political opinion. See Santos-Lemus v. Mukasey, 542
F.3d 738, 746–47 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas
v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Although her brother
was a police officer opposed to gangs, substantial evidence supports the conclusion
that the family relationship was not a reason Petitioners were targeted. Cf. Parada
v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018) (holding that petitioner suffered
persecution on account of a familial relationship where credible testimony
established that petitioner’s family was targeted because of his brother’s military
service). The denials of asylum and withholding of removal must be upheld.
The BIA did not err in declining to exercise discretion and consider
Petitioners’ humanitarian asylum claims as Petitioners did not present evidence of
“a particularly severe form of past persecution.” See Benyamin v. Holder, 579
F.3d 970, 977 (9th Cir. 2009); 8 C.F.R. § 1208.13(b)(1)(iii)(A) (The BIA may
exercise discretion and grant humanitarian asylum if “[t]he applicant has
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demonstrated compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution[.]”).
The BIA denied Petitioners’ motion to reopen to reapply for asylum and
withholding of removal as untimely in a conclusory order. The Government has
now conceded that the motion was timely. When the BIA does not provide
“specific and cogent reasons” for its determination, we are left without a reasoned
decision to review. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005);
see Agonafer v. Sessions, 859 F.3d 1198, 1206 (9th Cir. 2017) (“While the BIA
does not have to write an exegesis on every contention, it is required to consider
the issues raised, and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.”)
(internal citations omitted). We therefore remand to the BIA to consider the merits
of the motion to reopen as to Petitioners’ asylum and withholding of removal
claims in a reasoned decision.
In their motion to reopen, Petitioners also sought to reapply for protection
under the CAT. The BIA denied reopening on this claim by explaining that the
new evidence failed to show a likelihood of torture. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010). We therefore do not remand the motion to
reopen as to the CAT claim.
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PETITION IN 20-71799 IS DENIED. PETITION IN 21-821 IS
DENIED IN PART, GRANTED IN PART AND REMANDED.
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