Marina Calixtro Loya v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARINA CALIXTRO LOYA; et al., No. 18-72204
Petitioners, Agency Nos. A206-910-371
A206-910-372
v. A206-910-373
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2020**
Seattle, Washington
Before: IKUTA and R. NELSON, Circuit Judges, and OLIVER,*** District Judge.
Marina Calixtro Loya and her two minor children, all natives and citizens of
Mexico, seek review of the Board of Immigration Appeals’s (“BIA”) order reversing
the Immigration Judge’s (“IJ”) decision, which granted them asylum and granted
*
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 Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
Calixtro’s application for withholding of removal. As the parties are familiar with
the facts, we do not recount them here. We have jurisdiction under 8 U.S.C. § 1252.
We review the BIA’s legal conclusions de novo and its factual findings for
substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.
2017) (internal citations omitted). We deny the petition for review.
The BIA determined: (1) that Calixtro failed to show that Mexico’s
government was unable or unwilling to protect her from her sister-in-law; (2) that
her sister-in-law targeted her because of a personal vendetta or grudge and not on
account of a protected ground; (3) that Calixtro’s proposed particular social group,
a victim of domestic violence, was not cognizable in light of Matter of A-B-, 27 I. &
N. Dec. 316 (A.G. 2018); and (4) that Calixtro could safely and reasonably relocate
in Mexico. Calixtro has not raised a challenge to the BIA’s first three findings, and
therefore we find these issues waived. See Corro-Barragan v. Holder, 718 F.3d
1174, 1177 n.5 (9th Cir. 2013) (an applicant’s failure to contest an issue in her
opening brief results in waiver). Because an applicant for asylum must establish
membership in a particular group; that her membership in that group is a central
reason for her persecution; and that the alleged harm is inflicted by persons that the
government is unwilling or unable to control, Matter of M-E-V-G-, 26 I. & N. Dec.
227, 234–44 (B.I.A. 2014), Calixtro’s waiver is fatal to her claim for asylum.
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Even in the absence of waiver, however, we conclude that substantial
evidence supports the BIA’s conclusions. First, the record supports the Board’s
finding that Calixtro failed to establish that Mexico’s government was unable or
unwilling to protect her from her sister-in-law. Although Calixtro reported the
shooting incident to the police and her sister-in-law was not arrested, she also
testified that her sister-in-law fled the scene, frequently moved around to avoid the
government, and did not return for two years. These facts “simply do[] not compel
the conclusion that” Mexico’s government was unable or unwilling to protect
Calixtro. Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005). Second,
Calixtro’s testimony that her sister-in-law did not like her and mistreated her because
she had children by other men supports the BIA’s finding that Calixtro was targeted
because of a personal vendetta and not on account of a protected ground. See Molina-
Morales v. I.N.S., 237 F.3d 1048, 1052 (9th Cir. 2001) (“purely personal retribution”
is not persecution on account of a protected ground). Finally, Matter of A-B- clearly
supports the Board’s finding that Calixtro’s proposed particular social group is not
cognizable because such group was defined by the harm asserted. See Matter of A-
B-, 27 I. & N. Dec. at 334. Substantial evidence also supports the Board’s finding
that Calixtro could safely and reasonably relocate because Calixtro and members of
her family have lived unharmed in Michoacán, Mexico, away from her sister-in-law.
Thus, Calixtro has not established eligibility for asylum.
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Because Calixtro failed to meet the lesser burden of proof for establishing
eligibility for asylum, it follows that she cannot meet the higher standard for
withholding of removal. See 8 C.F.R. § 208.16(b); see also Alvarez-Santos v. I.N.S.,
332 F.3d 1245, 1255 (9th Cir. 2003).
Next, Calixtro’s contention that the record lacks the required clarity to allow
us to conduct a proper review of the BIA’s decision is unavailing. The record clearly
shows that Calixtro argued to both the IJ and the BIA that she sought asylum and
related relief on the basis of her membership in a particular social group, as a victim
of domestic violence, and both the IJ and the BIA reviewed and articulated her
proposed particular social group in their decisions.
Finally, we find that remanding this case to allow Calixtro to address the
implications of Matter of A-B- on her proposed particular social group would be
futile because her waiver of the BIA’s other findings is fatal to her asylum claim.
PETITION DENIED.
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