Hilda Ortiz-Zelaya v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HILDA FRANCISCA ORTIZ-ZELAYA, No. 20-70807
Petitioner, Agency No. A208-371-616
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2021**
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***
District Judge.
Hilda Francisca Ortiz-Zelaya seeks review of the decision of the Board of
Immigration Appeals (“BIA”), which summarily affirmed the Immigration Judge’s
*
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).
***
The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
(“IJ”) denial of her applications for asylum and withholding of removal.1 We have
jurisdiction under 8 U.S.C. § 1252 and review the agency’s findings for substantial
evidence. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005). To
reverse the agency’s findings, “we must find that the evidence not only supports [a
contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481
n.1 (1992). We deny the petition in part and dismiss it in part.
Substantial evidence supports the IJ’s determination that Ortiz-Zelaya failed
to establish past persecution. The gang’s unfulfilled verbal threats and the one
instance of a “metal object” being thrown through a window of Ortiz-Zelaya’s
home do not compel the conclusion that she suffered past persecution. See
Nahrvani, 399 F.3d at 1153–54 (holding that several incidents of harassment,
serious death threats, and minor property damage, none of which caused any
physical harm, did not compel a finding of persecution).
The IJ’s determination that Ortiz-Zelaya failed to establish a well-founded
fear of future persecution is also supported by substantial evidence. The evidence
shows that the gang had threatened to harm her and would harm her mother and
daughter if she failed to pay “rent” for her salon business. But Ortiz-Zelaya’s
mother and daughter still live in Honduras, and Ortiz-Zelaya provided no evidence
1
Ortiz-Zelaya does not seek review of the denial of relief under the Convention
Against Torture.
2
that her daughter has been harmed or threatened by the gang based on Ortiz-
Zelaya’s failure to pay “rent” since 2015. Given the evidence, the IJ reasonably
concluded that Ortiz-Zelaya failed to establish a well-founded fear of future
persecution. See Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (“[A]
petitioner’s fear of future persecution ‘is weakened, even undercut, when similarly-
situated family members’ living in the petitioner’s home country are not harmed.”
(quoting Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001))).2
Finally, Ortiz-Zelaya does not appear to argue that she is a United States
citizen. Rather, she argues that the IJ and BIA committed procedural error by
failing to review her derivative citizenship claim. We lack jurisdiction to consider
her procedural challenge as she failed to exhaust it. See Abebe v. Mukasey, 554
F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). But to the extent she
raises a substantive derivative citizenship claim, it fails because she neither alleges
nor points to any evidence showing that she satisfies the statutory requirements for
derivative citizenship. See 8 U.S.C. § 1431; 8 U.S.C. § 1432(a) (repealed 2000);
2
Because Ortiz-Zelaya failed to establish past persecution or a well-founded fear
of persecution, a necessary element of her asylum claim, see Nahrvani, 399 F.3d at
1152, we need not decide whether the BIA erred by failing to address her proposed
particular social group of “property and business” owners. And because Ortiz-
Zelaya failed to establish her burden to show persecution on account of a
statutorily protected ground as necessary for asylum, she also failed to demonstrate
that it is more likely than not she will be persecuted as necessary for withholding
of removal.
3
cf. Theagene v. Gonzales, 411 F.3d 1107, 1111–12 (9th Cir. 2005) (considering
and rejecting an unexhausted claim for nationality because the petitioner failed to
present a persuasive legal theory supporting such claim).
Petition DENIED in part and DISMISSED in part.
4