Luis Maldonado Barrios v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS MALDONADO BARRIOS, No. 16-73437
Petitioner, Agency No. A094-380-556
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 28, 2022**
San Francisco, California
Before: M. MURPHY,*** GRABER, and OWENS, Circuit Judges.
Luis Maldonado Barrios, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision summarily
*
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 Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
affirming the immigration judge’s (“IJ”) decision denying his applications for
withholding of removal and protection under the Convention Against Torture
(“CAT”). Where, as here, the BIA summarily affirms the IJ and cites Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994), “we review the IJ’s decision as if it
were the BIA’s.” Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008). We
review the agency’s factual determinations for substantial evidence, and we will
not reverse unless the evidence compels a contrary conclusion. Sanjaa v. Sessions,
863 F.3d 1161, 1164 (9th Cir. 2017). As the parties are familiar with the facts, we
do not recount them here. We dismiss in part and deny in part the petition.
1. Maldonado Barrios’ CAT claim is unexhausted and must be dismissed
for lack of jurisdiction. See Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir.
2019) (per curiam) (“Exhaustion . . . is jurisdictional and therefore generally bars
us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim
not presented in administrative proceedings below.” (citation and internal
quotation marks omitted)). Claims are exhausted before the BIA when the agency
has “notice of what was being challenged” and an “opportunity to pass” on the
contested issues. Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (citations
omitted). A general or conclusory challenge is insufficient because it “does not
apprise the BIA of the particular basis for [petitioner]’s claim.” Rizo v. Lynch, 810
F.3d 688, 692 (9th Cir. 2016). In his brief to the BIA, Maldonado Barrios
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cursorily mentioned that he was appealing the IJ’s denial of CAT relief, but did not
make any arguments as to the relevant issues. This conclusory challenge is
insufficient for exhaustion, and we therefore dismiss the petition as to the CAT
claim.
2. Contrary to the government’s contention, Maldonado Barrios’ claim for
withholding of removal was exhausted before the BIA. While Maldonado Barrios’
arguments regarding withholding were undeveloped in his brief to the BIA, they
referenced the specifics of his case and were sufficient to “apprise the BIA of the
particular basis” for his claim: the alleged errors as to particular social group
membership, likelihood of future persecution, and nexus. Rizo, 810 F.3d at 692;
see also Bare, 975 F.3d at 960 (“[T]he petitioner may raise a general argument in
the administrative proceeding and then raise a more specific legal issue on
appeal.”).
As to the merits, to qualify for withholding of removal, “the applicant must
demonstrate that it is ‘more likely than not that he or she would be persecuted on
account of race, religion, nationality, membership in a particular social group, or
political opinion upon removal to [the country in question].’” Silva v. Garland,
993 F.3d 705, 719 (9th Cir. 2021) (quoting 8 C.F.R. § 1208.16(b)(2)).
Substantial evidence supports the IJ’s conclusion that Maldonado Barrios
failed to show a clear probability of persecution. Persecution is an “extreme
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concept,” Kaur v. Wilkinson, 986 F.3d 1216, 1222 (9th Cir. 2021) (citation
omitted), and none of the past harm Maldonado Barrios has faced qualifies. See
Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir. 2022) (holding that a
series of robberies including a detention and beating did not constitute
persecution); Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021) (holding that
evidence that the petitioner was detained and beaten by police for 18–19 hours did
not compel a finding of past persecution). Without evidence of an individualized
threat to Maldonado Barrios himself, the evidence of a general atmosphere of
crime and violence in Guatemala does not compel the conclusion that he
established eligibility for withholding. See Sharma, 9 F.4th at 1063.
Further, substantial evidence supports the IJ’s conclusion that there is no
nexus between the harm Maldonado Barrios fears and a statutorily protected
ground. Maldonado Barrios must show that his membership in a particular social
group is “a reason” for the claimed persecution. Barajas-Romero v. Lynch, 846
F.3d 351, 360 (9th Cir. 2017). Maldonado Barrios testified that the police singled
him out on the bus in 1999 because of his long hair, and he otherwise cannot
identify who has harmed his family members or why. His suspicions that gang
members target landowners like him and his family because the gangs believe that
landowners are in a position to pay extortions are not unreasonable, but those
suspicions do not compel reversal of the IJ’s no-nexus finding.
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Because substantial evidence supports the agency’s conclusions as to
persecution and nexus, we need not address whether the IJ erred in failing to
recognize Maldonado Barrios’ membership in a particular social group.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN
PART.
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