Veronica Velasco Cervantes v. Eric H. Holder Jr. ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA VELASCO-CERVANTES, 
Petitioner, No. 08-73295
v.
 Agency No.
A200-099-714
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 11, 2009—Seattle, Washington
Filed January 27, 2010
Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer
1621
VELASCO-CERVANTES v. HOLDER 1623
COUNSEL
Rosaura Rodriguez, Rios Cantor, P.S., Seattle, Washington,
for the petitioner.
Jeffrey R. Meyer, Office of Immigration Litigation, Washing-
ton, D.C., for the respondent.
OPINION
BEEZER, Circuit Judge:
Veronica Velasco-Cervantes (“Velasco”), a native and citi-
zen of Mexico, petitions for review of the Board of Immigra-
tion Appeals’ (“BIA”) dismissal of her appeal of an
Immigration Judge’s (“IJ”) decision denying her petitions for
asylum, withholding of removal and relief under the Conven-
tion Against Torture. Velasco asserts that she is entitled to
relief because she was forced to serve as a material witness
on behalf of the United States against illegal smugglers. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we
deny Velasco’s petition. Material witnesses for the govern-
ment do not constitute a protected social group. See 8 U.S.C.
§ 1101(a)(42)(A).
I
The events that lead to Velasco’s instant petition for review
started in "2003 when Velasco entered the United States ille-
"
1624 VELASCO-CERVANTES v. HOLDER
gally with her husband. Velasco returned to Mexico in July
2005 to be with her parents after her brother died from leuke-
mia.
Velasco then attempted to return to the United States with
a visitor’s visa, but her visa application was denied. Unable
to return to the country legally, Velasco sought the assistance
of smugglers. She traveled to Tijuana, Mexico, where she met
with a woman, Elba, who housed Velasco and warned her not
to say anything about the smugglers if she was caught.
Velasco spent approximately two days in the house, waiting
for an opportunity to be smuggled across the border.
After those two days had passed, Velasco was taken to a
second house where she waited another four days to cross the
border. The conditions in the second house were dire, with the
smugglers preventing anyone from leaving and providing
only a minimal amount of food and water. While at the house,
Velasco narrowly avoided being raped by one of the smug-
glers. Velasco eventually left the house and stayed with
Elba’s mother until the opportunity came to cross the border.
On January 26, 2007, a man came to get Velasco to take
her across the border into the United States, warning her that
she should not say anything about the smugglers if she was
caught. The two began the journey to the border and, after the
smuggler hid Velasco in a small compartment under the back
seat of the car, were ultimately joined by three other smug-
glers. At the border, an immigration agent uncovered the
compartment where Velasco had been hiding. The immigra-
tion agent questioned Velasco, who denied knowing the iden-
tity of the smugglers.
A criminal complaint was filed against the driver of the car
the following day, and Velasco was named as a material wit-
ness in that case. To that end, Velasco was held in custody
until February 3, 2006, when she was paroled into the United
VELASCO-CERVANTES v. HOLDER 1625
States for one month while the case against the driver was
resolved.1
During her time in custody, Velasco’s husband contacted
Elba and, in anger over the smugglers’ mistreatment of his
wife, told Elba that Velasco would tell the immigration offi-
cers “everything” about the smugglers. Elba warned Velas-
co’s husband that Velasco should not talk. The smugglers
proceeded to call Velasco’s sister, parents and sister-in-law to
issue similar warnings. They also repeatedly called Velasco
herself, threatening to kill her if she helped the government.
On March 30, 2006, the Department of Homeland Security
initiated removal proceedings against Velasco by filing a
Notice to Appear. The Notice to Appear charged her, pursuant
to 8 U.S.C. § 1182(a)(7)(A)(i)(I), with removability as an
immigrant not in possession of a valid entry or travel docu-
ment.
On August 17, 2006, Velasco appeared at a hearing and
conceded, via counsel, her removability. The threats that
Velasco had received from the smugglers prompted her, on
October 16, 2006, to apply for asylum, withholding of
removal and withholding under the Convention Against Tor-
ture because she feared retribution by the smugglers if she
was forced to return to Mexico.
On March 13, 2007, a merits hearing was conducted on
Velasco’s case. The IJ issued a written decision on May 25,
2007. The IJ found Velasco credible, but denied all forms of
relief. The IJ concluded that there was no evidence that
Velasco had suffered past persecution on account of a pro-
tected ground nor any evidence that Velasco had a well-
founded fear of future persecution. Likewise, the IJ held that
Velasco had failed to demonstrate the requisite nexus between
1
The driver eventually pleaded guilty, prompting the release of Velasco
as a material witness.
1626 VELASCO-CERVANTES v. HOLDER
the feared harm and one of the five protected grounds enu-
merated in 8 U.S.C. § 1101(a)(42)(A).
On June 15, 2007, Velasco appealed the IJ’s decision to the
BIA. In a single-member order, the BIA dismissed Velasco’s
appeal, affirming the IJ’s denial of all forms of relief. The
BIA held, among other things, that former material witnesses
for the government do not constitute a particular social group.
Velasco’s appeal to this court timely followed.
II
We review questions of law de novo. Aguilar Gonzalez v.
Mukasey, 534 F.3d 1204, 1208 (9th Cir. 2008). The BIA’s
interpretation of immigration laws is “entitled to deference.”
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003).
III
Velasco contends that the BIA and IJ erred by concluding
that she failed to demonstrate a well-founded fear of future
persecution on account of a protected ground if she was
forced to return to Mexico.2 Specifically, Velasco contends
that she would suffer harm at the hands of the smugglers due
to her membership in a particular social group: former mate-
rial witnesses for the United States government.3 Velasco’s
2
We do not review Velasco’s Convention Against Torture claim
because she has waived review of that claim by only raising it in her reply
brief. The IJ denied Velasco relief under the Convention Against Torture
and the BIA affirmed that decision. On appeal to this court, Velasco failed
to object to the denial in her opening brief and she has thereby waived
review of the issue. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066
n.5 (9th Cir. 2003) (declining “to consider new issues raised for the first
time in a reply brief”).
3
We do not address Velasco’s alternate contention that she would face
persecution on account of an imputed political opinion because Velasco
has failed to exhaust that argument. Velasco did not explicitly raise this
VELASCO-CERVANTES v. HOLDER 1627
contention is without merit and she is not entitled to asylum.4
[1] In order to establish eligibility for asylum under the
Immigration and Nationality Act, a petitioner must show that
she is a “refugee.” 8 U.S.C. § 1101(a)(42)(A). To do so, a
petitioner must demonstrate, among other things, a “well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion.” Id; see also Zhu v. Mukasey, 537 F.3d 1034,
1038 (9th Cir. 2008).
[2] As we have previously explained, a “particular social
group” is “one united by a voluntary association . . . or by an
innate characteristic that is so fundamental to the identities or
consciences of its members that members either cannot or
should not be required to change it.” Hernandez-Montiel v.
INS, 225 F.3d 1084, 1092 (9th Cir. 2000) (emphasis omitted).
In making this determination, we look to “whether a group’s
shared characteristic gives members social visibility and
whether the group can be defined with sufficient particularity
to delimit its membership.” Arteaga v. Mukasey, 511 F.3d
940, 944 (9th Cir. 2007).
[3] Here, Velasco has failed to demonstrate that former
contention in her asylum application, the written materials in support of
her application, her notice of appeal to the BIA or her appeal to the BIA.
The mere fact that, on the last page of her brief for the BIA, she cited a
case that discussed imputed political opinion was completely insufficient
to put the BIA on notice of the argument considering the fact that she cited
the case for an entirely different reason.
4
Because Velasco is unable to meet the standard needed for asylum, she
is also unable to meet the higher standard—clear probability of persecu-
tion, see Ahmed v. Keisler, 504 F.3d 1183, 1199 (9th Cir. 2007)—needed
for withholding of removal. 8 U.S.C. § 1231(b)(3)(A); see also Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (holding that applicants
who fail to satisfy the lower standard of proof for asylum automatically
fail to satisfy the higher standard for withholding of removal).
1628 VELASCO-CERVANTES v. HOLDER
material witnesses for the government constitute a particular
social group. Government material witnesses are often invol-
untarily recruited for the task. Moreover, former government
material witnesses cannot be defined with “sufficient particu-
larity,” see id., because any person of any origin can be invol-
untarily placed in that role in any type of legal proceeding.
Our decision is in accord with precedent in our circuit holding
that government informants also do not constitute a particular
social group. See Soriano v. Holder, 569 F.3d 1162, 1166 (9th
Cir. 2009) (holding “that a ‘government informant’ is not a
member of a particular social group for the purposes of asy-
lum”).
DENIED.