Maria Enriquez Baeza v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ISABEL ENRIQUEZ BAEZA, No. 17-70976
Petitioner, Agency No. A200-554-190
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2022
Submission Deferred August 26, 2022
Submitted January 23, 2023
Phoenix, Arizona
Before: MURGUIA, Chief Judge, and O’SCANNLAIN and GRABER, Circuit
Judges.
Maria Isabel Enriquez Baeza, a citizen of Mexico, appeals the Board of
Immigration Appeals’ decision affirming an immigration judge’s denial of her
applications for asylum, withholding of removal, and protection under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review agency denials of asylum, withholding of removal, and CAT
relief for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017). We deny Enriquez Baeza’s petition.
1. To establish eligibility for asylum or withholding based on past
persecution by nongovernmental actors, a petitioner must establish “that the
government is unwilling or unable to control that nongovernmental actor.” Doe v.
Holder, 736 F.3d 871, 878 (9th Cir. 2013). Because the Federal Rules of Appellate
Procedure require the opening brief to contain the “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of the record on which
the appellant relies,” Fed. R. App. P. 28(a)(8)(A), we “review only issues [that] are
argued specifically and distinctly in a party’s opening brief.” Indep. Towers of
Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (citation omitted).
Accordingly, “a bare assertion of an issue does not preserve a claim.” Id. (cleaned
up).
Enriquez Baeza’s opening brief includes a header stating, “[t]he Board
further erred in affirming the Immigration Judge’s finding that Enriquez has not
established that the harm suffered was inflicted by individuals that the government
is unable or unwilling to control.” But following this bare assertion, Enriquez
Baeza’s brief does not discuss asylum or withholding of removal, does not include
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any contentions or reasoning related to those claims, and provides no citations to
the authorities and parts of the record on which she relies. Enriquez Baeza’s
claims for asylum and withholding are therefore forfeited.
2. “To be eligible for CAT relief, a petitioner must show that torture
would be ‘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.’” Afriyie v.
Holder, 613 F.3d 924, 937 (9th Cir. 2010) (quoting 8 C.F.R. § 208.18(a)(1)),
overruled in part on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1070 (9th Cir. 2017). “Evidence that the police were aware of a particular
crime, but failed to bring the perpetrators to justice, is not in itself sufficient to
establish acquiescence in the crime. Instead, there must be evidence that the police
are unable or unwilling to oppose the crime.” Garcia-Milian v. Holder, 755 F.3d
1026, 1034 (9th Cir. 2014). Because Enriquez Baeza’s CAT arguments are limited
to the government’s “fail[ure] to bring . . . criminals to justice,” id., which is
insufficient to establish acquiescence, her CAT claim fails.
***
PETITION DENIED.
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