Romero Alas v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MADELINE CECILIA ROMERO ALAS, No. 22-280
Agency No.
Petitioner, A206-679-393
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2023**
San Francisco, California
Before: S.R. THOMAS, BEA, and BENNETT, Circuit Judges.
Petitioner Madeline Cecilia Romero Alas is a native and citizen of El
Salvador. She petitions for review of the Board of Immigration Appeals’
(“BIA”) order dismissing her appeal from the Immigration Judge’s (“IJ”) order
denying her applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We have jurisdiction under 8
*
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).
U.S.C. § 1252, and we review factual findings by the BIA or IJ for substantial
evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).
We deny the petition for review.
As to the withholding claim, substantial evidence supports the finding
that Petitioner has not demonstrated a nexus between her past persecution and
any particular social group. 1 Even assuming one of Petitioner’s proposed
particular social groups is cognizable, see Rios v. Lynch, 807 F.3d 1123, 1128
(9th Cir. 2015) (noting that “the family remains the quintessential particular
social group” (citation omitted)), the record does not show that Petitioner’s
membership in such a group was “a reason” for her persecution, see Barajas-
Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017) (explaining that the
withholding statute uses only “a reason” in contrast to the asylum statute, which
uses “one central reason”).2 Petitioner testified that she believes the gang
targeted her for extortion “[b]ecause they knew that [she] worked” and because
her commute gave her a predictable schedule. And although Petitioner’s uncle
1
Although “past persecution triggers a rebuttable presumption of a well-
founded fear of future persecution,” Garcia-Martinez v. Ashcroft, 371 F.3d
1066, 1073 (9th Cir. 2004) (citation omitted), Petitioner has also not
demonstrated a nexus to a protected category in the context of a well-founded
fear of future persecution. See Sanjaa v. Sessions, 863 F.3d 1161, 1164–65 (9th
Cir. 2017) (denying relief where petitioner had demonstrated past persecution
but not a nexus to a particular social group or to political opinion).
2
As Petitioner has not met the more lenient nexus standard for withholding of
removal, she necessarily has not met the stricter nexus standard for asylum: that
membership in any particular social group was “at least one central reason for”
her persecution. 8 U.S.C. § 1158(b)(1)(B)(i).
2 22-280
was murdered by gang members, there is no evidence connecting this murder to
the gang’s extortion of Petitioner. As the IJ identified, Petitioner’s extortion
was “attenuated by both time and space to [the] murder, which is strong
circumstantial evidence that they are unrelated.” See Deloso v. Ashcroft, 393
F.3d 858, 865–66 (9th Cir. 2005) (assessing circumstantial evidence of
persecutor’s motives).
Petitioner has also not established eligibility for relief under CAT. The
record evidence does not compel the conclusion that it is more likely than not
that she would suffer harm rising to the level of torture by government officials
or private actors with government acquiescence if she were returned to El
Salvador. The harm Petitioner experienced when threatened by gang members
did not rise to the level of torture, and she has not demonstrated a likelihood of
future torture. Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (“Torture is
‘more severe than persecution.’” (citation omitted)); 8 C.F.R. § 1208.18(a)(1)
(defining torture).
Finally, Petitioner’s claim that IJ did not have subject matter jurisdiction
because her Notice to Appear lacked the time and place of proceedings is
unexhausted, and the government has properly raised that it is unexhausted. See
Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1110 (2023) (holding the
exhaustion requirement is a non-jurisdictional claim-processing rule); Fort Bend
County v. Davis, 139 S. Ct. 1843, 1849 (2019) (explaining that a court must
enforce a claims-processing rule “if a party ‘properly raise[s]’ it” (alteration in
3 22-280
original) (citation omitted)). And even had Petitioner raised her claim to the
BIA, the claim is foreclosed by United States v. Bastide-Hernandez, 39 F.4th
1187, 1191–92 (9th Cir. 2022) (en banc).
DENIED.
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