Maria Moran-Marinero v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA DEL TRANSITO MORAN- No. 20-71622
MARINERO; YOSELIN GABRIELA
REINA-MORAN, Agency Nos. A206-418-975
A206-418-976
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2023**
Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Maria Moran-Marinero (Petitioner) and her now-adult daughter, natives and
citizens of El Salvador, petition for review of the Board of Immigration Appeals’
order dismissing Petitioner’s appeal from an immigration judge’s decision denying
*
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).
her applications for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review the agency’s factual findings for substantial evidence. Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for
review.
1. Petitioner has not established that she is entitled to asylum. “To qualify
for asylum, an alien must demonstrate by clear and convincing evidence that the
alien’s application for asylum was ‘filed within 1 year after the date of the alien’s
arrival in the United States.’” Al Ramahi v. Holder, 725 F.3d 1133, 1134–35 (9th
Cir. 2013) (quoting 8 U.S.C. § 1158(a)(2)(B)). An alien can obtain an exemption
from the 1-year time bar by showing either (1) “changed circumstances” affecting
his eligibility; or (2) “extraordinary circumstances relating to the delay in filing an
application.” 8 U.S.C. § 1158(a)(2)(D). In such cases, the alien must still “file an
asylum application within a reasonable period.” 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5).
Petitioner last entered the United States in March 2014 and filed her asylum
application in December 2016. The agency concluded that Petitioner’s almost
three-year delay in applying for asylum was not reasonable. Petitioner did not
contest this determination and has therefore waived any challenge to it. Corro-
Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (issues not raised in
opening brief are waived).
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2. The agency’s denial of Petitioner’s application for withholding of removal
is supported by substantial evidence. The record does not demonstrate that
Petitioner’s proposed group – Salvadoran merchants or businesswomen at risk of
harm from gangs – is “composed of members who share a common immutable
characteristic,” or that Salvadoran society perceives business owners as a distinct
social group. See Macedo Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021)
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). Thus,
Petitioner failed to establish that her proposed social group is cognizable. See id.at 882–83.
3. Finally, substantial evidence supports the denial of CAT relief. Petitioner
has not shown past harm rising to the level of torture, and the agency reasonably
concluded that her fear of torture by or with the acquiescence of public officials is
speculative. Therefore, the record does not compel the conclusion that Petitioner
satisfied her burden for CAT protection. See Xochihua-Jaimes v. Barr, 962 F.3d
1175, 1183 (9th Cir. 2020) (holding that an applicant seeking relief under the CAT
must establish that she “will more likely than not be tortured with the consent or
acquiescence of a public official if removed to her native country”).
PETITION DENIED. The temporary stay of removal remains in place
until the mandate issues. The motion for a stay of removal is otherwise denied.
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