ESTRADA AGUADO v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-07-26No. No. 19-72222

Summary · law.co

Holding. The petition for review was denied and the Board of Immigration Appeals' decision dismissing the family's appeal was upheld.

A Nicaraguan family of five—two adults and three minor children—sought asylum, withholding of removal, and relief under the Convention Against Torture after fleeing their home country. The immigration judge denied all relief, and the Board of Immigration Appeals affirmed that decision. The family petitioned for court review, challenging the agency's conclusions.

The court rejected each claim on the merits. The two adult petitioners waived their asylum arguments by not contesting them in their opening brief. For the three minor children, the court found substantial evidence that any harm they experienced did not constitute persecution under asylum law and that they failed to show an objectively reasonable fear of future persecution based on political opinion. Because the children could not establish asylum eligibility, they could not qualify for withholding of removal. The two adults similarly failed to demonstrate persecution or a clear probability of harm. Finally, all petitioners failed to prove that torture by or with the consent of the Nicaraguan government was more likely than not if they returned, defeating their Convention Against Torture claim.

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

Key issues

Whether past harm constituted persecution qualifying for asylum
Whether petitioners demonstrated objectively reasonable fear of future persecution based on political opinion
Whether petitioners established eligibility for withholding of removal
Whether petitioners showed likely torture by or with government consent or acquiescence under the Convention Against Torture

Procedural posture

The court reviewed the Board of Immigration Appeals' order affirming the immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief for a Nicaraguan family.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Melkyn S. Estrada-Aguado, his wife, and his three minor children, natives and citizens of Nicaragua, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judges (“IJ”) decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review.

As to the asylum claim of the two adult petitioners, in their opening brief, petitioners do not contest the BIAs determination that they waived any challenge to the IJs finding that asylum was time barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a partys opening brief are waived).

As to the asylum claim of the three minor petitioners, substantial evidence supports the agencys determination that the harm petitioners experienced did not rise to the level of persecution. See Gormley v. Ashcroft, 364 F.3d 1172, 1177-80 (9th Cir. 2004) (recognizing that “mere economic disadvantage alone does not rise to the level of persecution” and finding no past economic persecution).

Substantial evidence also supports the agencys determination that petitioners failed to establish an objectively reasonable fear of harm on account of an actual or imputed political opinion. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too speculative”).

Thus, the asylum claims of the three minor petitioners fail. Because the minor petitioners failed to establish eligibility for asylum, in this case, they did not establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

As to the withholding of removal claims of the two adult petitioners, they likewise failed to establish eligibility for relief. See Gormley, 364 F.3d at 1177-80; Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016); Lanza v. Ashcroft, 389 F.3d 917, 935 (9th Cir. 2004) (no clear probability of persecution).

Substantial evidence supports the agencys denial of CAT relief because petitioners failed to show it is more likely than not they would be tortured by or with the consent or acquiescence of the government if they returned to Nicaragua. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

The BIA did not err in declining to reach the IJs alternative adverse credibility determination. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach); see also Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014) (reviewing de novo claims of due process violations in immigration proceedings). We reject as unsupported by the record petitioners’ contentions that the agency otherwise erred in its consideration of their claims.

The temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED.