Lopez Guerrero v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Maria Elena Lopez Guerrero; Nora No. 22-61
Guzman Lopez; Blanca Guzman Lopez; Agency Nos. A208-604-328
Ublado Guzman Lopez; Paloma Guzman A208-604-329
A208-604-330
Lopez; Alexa Guzman Lopez A208-604-331
A208-604-332
A208-604-333
Petitioners,
v. MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Portland, Oregon
Before: RAWLINSON, BEA, SUNG, Circuit Judges.
*
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).
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Petitioners Maria Elena Lopez Guerrero and her five children, all natives
and citizens of Mexico, petition this court for review of the Board of
Immigration Appeals’s (BIA) decision dismissing their appeal from the
Immigration Judge’s (IJ) denial of Petitioners’ application for asylum and
withholding of removal. We have jurisdiction under 8 U.S.C. § 1252(d). For the
reasons below, we deny the petition.
1. Substantial evidence supports the determination that Petitioners did not
show past persecution or a well-founded fear of future persecution because the
record did not establish the required nexus between the Petitioners’ experiences
and proposed social group.1 Although Petitioners understandably fear
comunitario and cartel violence, the record does not show that either the
comunitarios or cartel targeted Petitioners because of their familial relationship
to an individual who resisted recruitment and extortion. See Hussain v. Rosen,
985 F.3d 634, 646 (9th Cir. 2021) (recognizing that “an applicant must show
[they were] individually targeted on account of a protected ground rather than
simply the victim of generalized violence”).
Petitioners argue that the IJ and BIA did not correctly characterize the
proposed social group, which Petitioners describe as relatives of an individual
who resisted and fled comunitario recruitment who themselves fled Mexico and
1
We review the agency’s factual findings, including whether alleged
persecutors were motivated by Petitioners’ membership in a particular social
group, for substantial evidence. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th
Cir. 2000) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
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then returned. Even assuming Petitioners adequately presented that proposed
social group to the agency and that it is cognizable and not waived, Petitioners’
general, anecdotal assertions that cartels kill those who flee and then return do
not establish that Petitioners might be targeted because of their membership in
that group. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding
fear of future persecution was too speculative where record did not contain
specific evidence). Petitioners therefore did not satisfy the nexus requirement
for either asylum or withholding of removal.2
2. Petitioners failed to exhaust their ineffective assistance of counsel
(IAC) claim. Generally, Petitioners may not raise an IAC claim in front of the
BIA unless they (1) provide an affidavit detailing their agreement with counsel,
(2) inform counsel of the ineffective assistance claim against them and provide
counsel an opportunity to respond, and (3) report whether a complaint was filed
with the appropriate professional disciplinary authority. Guan v. Barr, 925 F.3d
1022, 1033 n.6 (9th Cir. 2019) (citing Matter of Lozada, 19 I. & N. Dec. 637,
639 (BIA 1988)). Petitioners did not satisfy these procedural requirements.
2
Petitioners have not shown any causal relationship between their feared harm
and a particular social group, so we do not need to address the difference in the
nexus requirements for asylum (requiring membership in a particular social
group to be “one central reason” for persecution) and withholding (requiring
membership to be only “a reason”). Barajas-Romero v. Lynch, 846 F.3d 351,
360 (9th Cir. 2017) (citing Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010)).
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A petitioner’s failure to comply with Matter of Lozada may be excused if
“the ineffectiveness of counsel was plain on its face.” Id. at 1033 (quoting
Tamang v. Holder, 598 F.3d 1083, 1090 (9th Cir. 2010)). To show ineffective
assistance of counsel, a petitioner must establish “inadequate performance and
prejudice.” Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir.
2015). Petitioners’ initial counsel’s decision to file a joint asylum application
does not plainly constitute inadequate performance: Petitioners were not
required to file individual applications for asylum, and because five of the
Petitioners were minors at the time they applied for relief, counsel may have
had strategic or humanitarian reasons for advising Petitioners to file jointly.
Petitioners have therefore failed to exhaust their administrative remedies for this
portion of their IAC claim.
Petitioners did not raise their counsels’ failure to challenge their Notices
to Appear in front of the BIA. Before raising the issue in their petition for
review, Petitioners were required to file a motion to reopen. Ontiveros-Lopez v.
I.N.S., 213 F.3d 1121, 1124 (9th Cir. 2000) (motion to reopen required for
administrative exhaustion of ineffective assistance of counsel claim to allow the
agency to apply its expertise to a fully developed record). Because they did not
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do so, Petitioners have also failed to exhaust their administrative remedies for
this piece of their IAC claim. 3
DENIED.
3
Even if we were to assume Petitioners did not fail to exhaust their
administrative remedies, we would conclude that their counsels’ failure to
challenge their Notices to Appear is not plainly ineffective on the face of the
record because the record does not show inadequate performance. Castillo-
Perez, 212 F.3d 518, 525 (9th Cir. 2000). Issued December 11, 2015,
Petitioners’ charging documents allege that “On December 9, 2015,
[Petitioners] applied for admission into the United States through San Ysidro
POE pedestrian inspections.” Accordingly, 8 U.S.C § 1182(a)(7), not §
1182(a)(6), was the correct inadmissibility provision.
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