Maria Baltazar v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA PEDRO BALTAZAR; et al., No. 20-72143
Petitioners, Agency Nos. A208-599-344
A208-599-345
v. A208-599-346
A208-599-347
MERRICK B. GARLAND, Attorney
General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2022**
Pasadena, California
Before: LEE and BRESS, Circuit Judges, and FITZWATER,*** District Judge.
Petitioners Maria Baltazar and her three minor children are natives and
citizens of Guatemala who came to the United States in 2015. They tried to enter
*
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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
without valid documentation and were placed into removal proceedings. Petitioners
conceded removability but applied for relief in the form of asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). After the
Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), Petitioners
filed a motion to terminate their proceedings for lack of jurisdiction. An immigration
judge (IJ) denied their applications and motion to terminate, and the Board of
Immigration Appeals (BIA) dismissed their appeal. Petitioners timely sought this
court’s review. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition
for review.1
1. The immigration court had subject matter jurisdiction. A notice to appear
(NTA) “that does not specify the time and place of an alien’s initial removal hearing
vests an Immigration Judge with jurisdiction over the removal proceedings . . . so
long as a notice of hearing specifying this information is later sent to the alien.”
Karingithi v. Whitaker, 913 F.3d 1158, 1161 (9th Cir. 2019) (quotation omitted); see
also Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (holding that an
NTA’s failure to include the address of the immigration court also does not affect
subject matter jurisdiction where subsequent notices provide that information). In
this case, the Department of Homeland Security (DHS) served Petitioners with
1
Petitioners abandoned their CAT claim before the BIA, and that claim is therefore
not before us.
2
incomplete NTAs on October 29, 2015, but DHS afterwards served Petitioners on
December 2, 2015 with notices of hearing that stated the date, time, and location of
their hearing (which Baltazar attended in person). Thus, under Karingithi and
Aguilar Fermin, jurisdiction properly vested in the immigration court.
2. Substantial evidence supports the BIA’s determination that Petitioners
failed to establish the required nexus for asylum or withholding of removal. See
Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015). Applicants must
establish a nexus between the persecution suffered and a protected ground, such as
“race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A) (asylum); 8 U.S.C. § 1231(b)(3) (withholding
of removal); see Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021)
(“[W]here ‘there was no nexus at all,’ we draw ‘no distinction between the “one
central reason” phrase in the asylum statute and the “a reason” phrase in the
withholding statute.’” (quoting Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th
Cir. 2017))).
There is no evidence in the record that Petitioners’ membership in a protected
group was a reason for their mistreatment in Guatemala. Baltazar testified that,
shortly before she and her children departed for the United States, a masked man
chased her son on his walk home from school, and, a week later, a seemingly
different masked man chased her and her children out of their home with a machete.
3
Petitioners allege that they “are indigenous Mayan Guatemalans who live without
the head of household” and that “they are targeted by people who want to hurt them,
steal from them, and take their land.” But Baltazar testified that she did not know
who the men were or why they targeted her family. Her only surmise was that the
first masked man wanted to kidnap or rape her son, but that speculation, even if
credited, is not sufficient to establish a nexus. Zetino v. Holder, 622 F.3d 1007, 1016
(9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated
by theft or random violence by gang members bears no nexus to a protected
ground.”); see also Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004)
(upholding no-nexus finding where there was “no evidence that the perpetrators
victimized [the applicant] on account of his race as opposed to” being targeted for
theft).
3. Petitioners have abandoned their argument that the agency “failed to act as
a fact finder.” Before the BIA, Petitioners “did not specify any indicia of bias” or
explain how the IJ deprived them of a full and fair hearing. They make the same
conclusory assertion without explanation here, so we decline to reach it. Martinez-
Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief that are
not supported by argument are deemed abandoned.”).
Petitioners’ claim that the agency failed to consider the U.S. Department of
State’s Country Report on Human Rights Practices for Guatemala is without merit.
4
There is nothing in the agency’s decisions to suggest that it failed to consider all the
evidence in the record. Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006).
The IJ considered the merits of Petitioners’ applications, even though he did not find
Baltazar credible, and the BIA reviewed the IJ’s findings of fact. Regardless, the
Country Report does not compel the conclusion that Petitioners established a nexus
between the harm suffered and a protected ground.
DENIED.
5