ALVARADO MENDOZA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-23No. No. 19-70890

Summary · law.co

Holding. The petition for review is denied in part and dismissed in part.

Abigail Alvarado-Mendoza, a Mexican national, sought court review of an immigration agency decision that rejected her requests for asylum, withholding of removal, and relief under the Convention Against Torture. The court applied the substantial evidence standard to review the agency's factual findings and the abuse of discretion standard for the agency's denial of her request for additional time to prepare her case. The court found that the agency's conclusions were supported by sufficient evidence in the administrative record.

The court determined that the harm Alvarado-Mendoza experienced did not meet the legal threshold of persecution and that she failed to connect her feared harm to a legally protected category. The court also declined to consider a social group category she raised for the first time in her appellate brief because she had not presented it to the agency below. Because Alvarado-Mendoza abandoned several claims by not challenging them in her opening brief—including her Convention Against Torture claim, her request for voluntary departure, and her due process arguments—those issues were forfeited. The court found no abuse of discretion in the agency's refusal to grant her more time to prepare.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the harm experienced constitutes persecution under asylum law
Whether the applicant established a required nexus between feared harm and a protected ground
Whether a social group claim raised for the first time on appeal may be considered
Whether the agency abused its discretion in denying a continuance request

Procedural posture

Alvarado-Mendoza petitioned for review of the Board of Immigration Appeals' affirmance of an immigration judge's denial of her asylum, withholding of removal, and Convention Against Torture applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Abigail Alvarado-Mendoza, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review for abuse of discretion the agencys denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.

We do not consider the materials Alvarado-Mendoza references in her opening brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc).

Substantial evidence supports the agencys determination that the harm Alvarado-Mendoza experienced does not rise to the level of persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (threats alone rarely constitute persecution); Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (persecution is “an extreme concept”).

Substantial evidence also supports the agencys determination that Alvarado-Mendoza failed to establish a nexus between the harm she fears and a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”); Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir. 2001) (petitioner did not establish nexus to a protected ground where the evidence indicated that the harm he experienced and feared was motivated by personal retribution).

We lack jurisdiction to consider the proposed particular social group of “female cattle ranchers” raised in Alvarado-Mendozas opening brief. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). We reject as unsupported by the record Alvarado-Mendozas contention that she raised this proposed particular social group before the agency.

Thus, Alvarado-Mendozas asylum and withholding of removal claims fail.

In her opening brief, Alvarado-Mendoza does not challenge the agencys denial of CAT relief, voluntary departure, or administrative closure, and she also does not challenge the BIAs conclusion that the IJ did not violate her right to due process. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-1080 (9th Cir. 2013) (issues not specifically raised and argued in a partys opening brief are waived); see also Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for the first time in the reply brief are waived.”).

The agency did not abuse its discretion in denying Alvarado-Mendozas motion for a continuance. Sandoval-Luna, 526 F.3d at 1247 (agency did not abuse its discretion in denying a continuance where the record did not establish petitioners present eligibility for relief); see also Matter of L-A-B-R-, 27 I.&N. Dec. 405, 413 (A.G. 2018) (whether a noncitizen will obtain collateral relief is a factor IJ must consider in deciding whether to grant a continuance). We reject as unsupported by the record Alvarado-Mendozas contention that the agency failed to consider evidence in its analysis of her request for a continuance.

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal (Docket Entry Nos. 1 and 10) is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.