Juana Juaquin Nicolas v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
DEC 2 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUANA JOAQUIN NICOLAS; No. 19-72061
LEANDRO ALEXANDER FRANCISCO
JOAQUIN, Agency Nos. A208-596-011
A208-596-012
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District
Judge.
*
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 Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
Juana Joaquin Nicolas appeals the Board of Immigration Appeals denial of
her application for withholding of removal.1 “We review denials of asylum,
withholding of removal, and CAT relief for substantial evidence and will uphold a
denial supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir.
2014) (cleaned up) (quoting Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014)). Under this standard, the agency determination must be upheld “unless
the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1
(1992)).
To establish eligibility for withholding of removal, Joaquin Nicolas must
demonstrate “that it is more likely than not that . . . she would be persecuted on
account of race, religion, nationality, membership in a particular social group, or
political opinion upon removal to [Guatemala].” 8 C.F.R. § 1208.16(b)(2). That
is, she must demonstrate that her “life or freedom would be threatened in [her
1
Joaquin Nicolas does not challenge the BIA's denial of her CAT claim. It
also appears that she does not challenge the BIA's denial of her asylum claim. But
to the extent she does, her challenge would fail for the same reasons discussed
herein. See Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (explaining
that both asylum and withholding of removal claims require a nexus between the
protected ground and the alleged persecution).
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home] country because of [her] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3) (emphasis
added).
Joaquin Nicolas must establish a nexus between her past or feared harm and
a proposed protected ground. See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60
(9th Cir. 2017). The nexus standard requires her to show that the protected ground
“was a reason” for her persecution. 8 U.S.C. § 1231 (b)(3)(c). She cannot do so.
With respect to Joaquin Nicolas’s first proposed protected social group, “my
mother’s daughter,” she failed to establish a sufficient nexus between the harm
suffered by some of her family members and her family membership. The
perpetrator has never been identified, nor has his or her motive. That some of
Joaquin Nicolas’s family members were killed, and the anonymous individual
knew of their death, is not enough to show a nexus. The record lacks evidence that
the threats and harm against her or her family members were motivated by their
relationship. The threats referenced her mother’s death. But the individual’s
knowledge of her mother’s and aunt’s death does not compel us to conclude that
the threats were made because of her relationship to them. Thus, the BIA correctly
affirmed the IJ’s finding that Joaquin Nicolas failed to establish that she was
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targeted in the past or would be targeted in the future based on her family
membership.
With respect to Joaquin Nicolas being an indigenous female, she also fails to
establish a sufficient nexus. The record does not compel the conclusion that she
was targeted in the past or would be targeted in the future based on her status as an
indigenous female.
The petition is DENIED.
4