Miguel-Cristobal v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 3 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Maria Miguel-Cristobal; Maria Pedro- No. 21-225
Miguel,
Agency Nos. A213-130-219
Petitioners, A213-130-221
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 30, 2023**
San Francisco, California
Before: M. SMITH and OWENS, Circuit Judges, and RODRIGUEZ,*** District
Judge.
Maria Miguel-Cristobal petitions this court to review the Board of
Immigration Appeals’ denial of asylum, withholding of removal, and Convention
Against Torture (CAT) relief. We have jurisdiction pursuant to 8 U.S.C.
*
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 Xavier Rodriguez, United States District Judge for
the Western District of Texas, sitting by designation.
§ 1252(a). We dismiss the petition in part and deny in part.1
Because the parties are familiar with the facts, we do not recount them here
except where necessary to provide context. We review legal questions de novo
and factual determinations for substantial evidence. Tomczyk v. Garland, 25
F.4th 638, 643 (9th Cir. 2022). We can reverse a factual determination for lack
of substantial evidence only if “any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Because the Board of
Immigration Appeals (BIA) affirmed the decision of the Immigration Judge (IJ)
and incorporated portions of the IJ’s decision, “we treat the incorporated parts of
the IJ’s decision as the BIA’s.” Maie v. Garland, 7 F.4th 841, 845 (9th Cir. 2021)
(quotation omitted).
1. Miguel-Cristobal failed to exhaust her argument that the BIA lacked
subject-matter jurisdiction over her removal proceedings because it issued a
notice to appear lacking date, time, and location information. See Ruiz-
Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (requiring exhaustion
of this specific argument). Miguel-Cristobal, who was represented by counsel,
did not contest jurisdiction before the IJ or in her notice of appeal to the BIA.
2. The BIA did not err in denying asylum and withholding of removal.
Even assuming Miguel-Cristobal established persecution and the cognizability of
1
One of Miguel-Cristobal’s daughters, Maria Pedro-Miguel, is a derivative
applicant and petitioner in this case. Another daughter, Julia Gaspar-Miguel, has
a separate petition for review pending before this court.
2
her proposed particular social group (PSG) of “single mothers with no male
protection,” substantial evidence supports the BIA’s determination that her
persecution would lack a causal nexus to membership in that PSG. See 8 U.S.C.
§ 1158(b)(1)(B)(i) (requiring asylum applicants to show that a protected basis is
“at least one central reason” for their persecution); id. § 1231(b)(3)(C) (requiring
withholding of removal applicants to show that a protected basis is “a reason” for
their persecution). Here, the “testimony is uncontroverted” that the gang
members who threatened Miguel-Cristobal wanted her daughter Julia to join their
gang, sell drugs, and become a prostitute. Thus, the IJ found—and the BIA
affirmed—that the gang’s threats to Miguel-Cristobal were motivated by its
desire to recruit Julia, not Miguel-Cristobal’s status as a “single mother with no
male protection.” Before this court, Miguel-Cristobal’s sole argument regarding
nexus relates to how the gang viewed Julia (who is not a petitioner in this case),
not Miguel-Cristobal herself, and therefore does not compel reversal.2
3. Substantial evidence also supports the BIA’s determination that
Miguel-Cristobal is not likely to be tortured with the acquiescence of the
Guatemalan government if she is removed. See 8 C.F.R. §§ 1208.16(c)(1)–(2),
2
The BIA’s no-nexus determination is dispositive of Miguel-Cristobal’s asylum
and withholding of removal applications. We, therefore, need not consider the
parties’ arguments concerning the cognizability of Miguel-Cristobal’s proposed
PSG.
3
1208.18(a)(1).3 When making such a determination, the BIA must consider “all
evidence relevant to the possibility of future torture,” including whether the
petitioner suffered past torture and “could relocate . . . where he or she is not
likely to be tortured.” Id. § 1208.16(c)(3). Here, Miguel-Cristobal concedes that
she did not experience past torture. She testified that another daughter had
similarly been recruited by gang members but was able to safely relocate. And
the IJ found that there was no evidence in the record suggesting the government
would acquiesce in any torture inflicted by the gang members.
Petition DISMISSED IN PART and DENIED IN PART.
3
We reject the government’s contention that we lack jurisdiction over Miguel-
Cristobal’s CAT challenge. It is black-letter law that “we may review any issue
addressed on the merits by the BIA, regardless of whether the petitioner raised it
before the agency.” Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018).
4