PEREZ LOPEZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-03-10No. No. 18-71631

Summary · law.co

Holding. The court denied the petitions for review of the removal order and the denial of the motion to reopen, concluding the BIA's findings were supported by substantial evidence and that Perez-Lopez failed to exhaust her administrative remedies.

Maritza Perez-Lopez and her two children sought review of the Board of Immigration Appeals' order removing them from the United States and denying their motion to reopen proceedings. Perez-Lopez claimed she faced persecution in Guatemala based on her membership in a particular social group—single female business owners with partners in the United States—and sought asylum, withholding of removal, and protection under the Convention Against Torture.

The court found substantial evidence supported the BIA's denial of asylum because the anonymous extortion threats Perez-Lopez received appeared motivated by financial gain rather than her membership in any protected group. Regarding her Convention Against Torture claim, although the BIA failed to explicitly discuss certain evidence about relocation and country conditions, the court determined this omission was not fatal because Perez-Lopez had not demonstrated an individualized risk of torture or that Guatemalan officials would acquiesce to her torture. The court also rejected her motion to reopen argument because she failed to raise it during her administrative appeal to the BIA.

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

Key issues

Whether extortion motivated by financial gain constitutes persecution on account of membership in a particular social group
Whether the BIA properly analyzed Convention Against Torture eligibility despite not explicitly addressing all evidence
Whether an applicant must demonstrate an individualized, particularized risk of torture rather than generalized country violence
Whether failure to raise arguments in administrative appeal bars judicial review

Procedural posture

This is a petition for review of a final removal order and denial of a motion to reopen issued by the Board of Immigration Appeals.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Maritza Perez-Lopez (“Perez-Lopez”) and her two minor children petition to review the Board of Immigration Appeals’ (“BIA”) final removal order and denial of a motion to reopen and terminate proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We deny the petition regarding the removal order, because the BIAs denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) is supported by substantial evidence. See Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011) (explaining the standard of review). We also deny the petition regarding the motion to reopen, because Perez-Lopez failed to exhaust her administrative remedies by neglecting to raise her argument in her appeal to the BIA.

1. Perez-Lopez claims that she is entitled to asylum and withholding of removal as she cannot return to Guatemala “because of persecution or a well-founded fear of persecution on account of ․ membership in a particular social group.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A).

To establish eligibility for asylum based on past persecution, “an applicant must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control.” Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000).

Perez-Lopez claims that she was persecuted on account of her membership in a particular social group: single female Guatemalan business owners whose partners are in the United States. Even so, the BIAs conclusion that Perez-Lopez failed to establish a nexus between her membership and any past persecution is supported by substantial evidence.

See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (“[A petitioner] must establish that any persecution was or will be on account of his membership in such group.”).

Perez-Lopez received a series of anonymous extortion demands over the telephone. She points to the callers references to her small business and husbands presence in the United States to show that she was targeted because of her particular social group. The BIA reasonably concluded that economic motives drove the callers threats, as the comments were made in the context that Perez-Lopez had the ability to meet the demands. There is also evidence that suggests the threats constituted an indiscriminate act of violence, motivated by financial gain. Persecution on account of economic reasons is not a protected ground for asylum.

2. Next, Perez-Lopez argues that the agency failed to conduct a proper analysis in determining whether she is eligible for CAT relief. An applicant must establish: (1) it is more likely than not she will suffer harm severe enough to constitute torture; and (2) the torture would occur at the hands of a government official, or with the acquiescence of a government official. 8 C.F.R. § 1208.16-18. The agency must consider “all evidence bearing on the likelihood of future torture ․, including but not limited to past torture, possibility of safe relocation, country evidence of flagrant human rights violations, and other evidence regarding country conditions.” Barajas-Romero v. Lynch, 846 F.3d 351, 364 (9th Cir. 2017) (citing 8 C.F.R. § 1208.16).

When it is apparent that the BIAs analysis “did not consider all of the evidence before it”—for example, if the agency “misstat[es] the record [or] fail[s] to mention highly probative or potentially dispositive evidence”—we generally remand for the BIA to reconsider its denial, taking into account the specific evidence presented. Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). Here, it is true that the agency failed to assert that it had considered evidence of petitioners’ inability to relocate within Guatemala or country conditions. However, it is not apparent that this evidence is potentially dispositive.

First, Perez-Lopez made no indication of an individualized risk of torture. Generalized evidence of violence and crime not particular to the applicant is insufficient to show a particularized threat of torture. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Perez-Lopez has not identified any country conditions that suggest she would be at risk more than other Guatemalan women. Thus, there is insufficient evidence to establish that she would be subject to a particularized threat of torture if removed.

Second, substantial evidence supports the BIAs determination that Perez-Lopez failed to show Guatemalan authorities would acquiesce to her torture. “[E]vidence that a government has been generally ineffective in preventing or investigating criminal activities [does not] raise an inference that public officials are likely to acquiesce in torture, absent evidence of corruption or other inability or unwillingness to oppose criminal organizations.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Perez-Lopez cannot identify the person who threatened her. Thus, it is unclear who played a role.

3. As a final matter, we do not reach the merits of Perez-Lopezs arguments regarding her motion to reopen for lack of immigration court jurisdiction based on Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). In her brief to the BIA, she failed to exhaust her argument that the Notice to Appear did not include the address of the court where the charging documents were filed. See 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

The petitions for review are DENIED.

FOOTNOTES

. The BIA declined to address whether Perez-Lopezs proposed social group was cognizable. Instead, it dismissed her appeal on the ground that she failed to establish a sufficient nexus between the alleged harm and her membership in the proffered group. Thus, our review is limited to the nexus issue. See Hernandez-Cruz v. Holder, 651 F.3d 1094, 1110 (9th Cir. 2011) (“[W]e cannot deny a petition for review on a ground that the BIA itself did not base its decision.”).

. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An aliens desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”).