Jose Hernandez-Vasquez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HERNANDEZ-VASQUEZ; No. 19-72815
CLAUDIA HERNANDEZ-MURCIA;
FATIMA HERNANDEZ-MURCIA, Agency Nos. A208-753-236
A208-753-237
Petitioners, A208-753-238
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2022**
Pasadena, California
Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.
Petitioners Jose Hernandez-Vasquez and his two daughters petition for review
of a decision of the Board of Immigration Appeals (BIA) affirming the order of an
Immigration Judge denying their applications for asylum, withholding of removal,
*
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).
and protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
“Where, as here, the BIA agrees with the [Immigration Judge’s] decision and
also adds its own reasoning, we review the decision of the BIA and those parts of
the [Immigration Judge’s] decision upon which it relies.” Duran-Rodriguez v. Barr,
918 F.3d 1025, 1027–28 (9th Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028
(9th Cir. 2011)). “We review questions of law, such as whether a proposed particular
social group is cognizable, de novo.” Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir.
2020). “We review the denial of asylum, withholding of removal[,] and CAT claims
for substantial evidence.” Duran-Rodriguez, 918 F.3d at 1028. “Under this
standard, we must uphold the agency determination unless the evidence compels a
contrary conclusion.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 481 n.1
(1992)).
Petitioners bear the burden of proving eligibility for asylum. See 8 U.S.C.
§ 1158(b)(1)(B)(i). To qualify for asylum, Petitioners must show that they are
“refugee[s]” within the meaning of 8 U.S.C. § 1101(a)(42)(A) by demonstrating that
they have suffered past persecution or have a well-founded fear of future persecution
on account of “race, religion, nationality, membership in a particular social group,
or political opinion.” Here, the Immigration Judge found that Petitioners “ha[d] not
demonstrated any past persecution” or “a well-founded fear of [future] persecution.”
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Petitioners—who are represented by counsel—do not challenge these findings on
appeal. This failure is fatal to their petition for review of the Immigration Judge’s
denial of their applications for asylum and withholding of removal. See Lopez-
Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013); cf. Matus-Leva v.
United States, 287 F.3d 758, 760 (9th Cir. 2002).
Petitioners also arguably waived their CAT claims before our court.
“Compliance with the rules is not a mere formality,” and “we’ve repeatedly held that
failure to comply with [Federal Rule of Appellate Procedure] 28, by itself, is
sufficient ground to justify dismissal of an appeal.” Christian Legal Soc. Chapter
of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (citation omitted). In their
“Statement of the Issues,” Petitioners challenge the Immigration Judge’s denial of
their CAT claims with respect to only “Hernandez-Vasquez’s daughters.” But in
their “Summary of the Argument,” Petitioners seem to challenge the denial only as
to Hernandez-Vasquez. Then, in their “Argument,” Petitioners perfunctorily
challenge the denial as to both. Because of Petitioners’ noncompliance with Rule
28, we could conclude that they have waived any challenge to the Immigration
Judge’s denial of their CAT claims.
But even assuming they did not waive their CAT claims, substantial evidence
supports the Immigration Judge’s denial of those claims. Hernandez-Vasquez was
never physically harmed, let alone tortured. And although gang members harassed
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his daughters, the agency was not compelled to conclude this rose to the level of
“torture.” See 8 C.F.R. § 208.18(a)(2). Moreover, the harassment was not “inflicted
by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” Garcia-Milian v. Holder, 755 F.3d 1026,
1033 (9th Cir. 2014) (quoting Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th
Cir.2003)); see 8 C.F.R. § 208.18(a)(1).
PETITION DENIED.
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