Migdalia Giron Garcia v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2022
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
MIGDALIA AZUCENA GIRON GARCIA; No. 17-72906
NARALY ROCIO AGUILAR-GIRON,
Agency Nos. A206-455-937
Petitioners, A206-455-938
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2022**
San Francisco, California
Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.
Petitioner Migdalia Azucena Giron Garcia (“Giron Garcia”), a native and
citizen of Guatemala, petitions for review of the decision of the Board of
Immigration Appeals (“BIA”) upholding the order of the Immigration Judge (“IJ”)
denying her application for asylum and withholding of removal and ordering her
removed to Guatemala. Petitioner Naraly Rocio Aguilar-Giron, Giron Garcia’s
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
daughter, is a derivative beneficiary with respect to her mother’s application for
asylum only. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005); 8 U.S.C.
§ 1158(b)(3)(A); 8 C.F.R § 1208.21. We have jurisdiction pursuant to § 242(a)(1)
of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), and we review the
agency’s factual findings for substantial evidence. Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Under that standard, the
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We
deny the petition.
To qualify for asylum, Giron Garcia must show that she was persecuted or
has a well-founded fear of persecution “on account of race, religion, nationality,
membership in a particular social group, or political opinion,” see 8 U.S.C.
§ 1101(a)(42)(A), and that one of these protected ground constitutes “one central
reason” for the alleged persecution, id. § 1158(b)(1)(B)(i). To qualify for
withholding of removal, Giron Garcia must show that one of these protected
grounds constituted “a reason” for the persecution. Barajas-Romero v. Lynch, 846
F.3d 351, 358–59 (9th Cir. 2017); see also 8 U.S.C. § 1231(b)(3)(A). Substantial
evidence supports the BIA’s determination that Giron Garcia failed to establish a
sufficient nexus, under either of these standards, between her alleged persecution
and her membership in a particular social group.
2
The agency reasonably determined that Giron Garcia had failed to show that
the harassing phone calls and text messages she received were based on her
membership in her proposed social groups, namely, “member[s] of the Giron
Garcia family” and “Guatemalan women.” Giron Garcia acknowledged that she
did not know the identity of the anonymous caller, and while she thought that the
caller was probably one of her husband’s ex-girlfriends, she also said that she did
not think that the caller was either of the two women with whom he had previously
lived. Although “‘the factual circumstances alone’ may constitute sufficient
circumstantial evidence of a persecutor’s identity or motives,’” Canales-Vargas v.
Gonzales, 441 F.3d 739, 744 (9th Cir. 2006) (quoting Navas v. INS, 217 F.3d 646,
657 (9th Cir. 2000)), the record here does not compel the conclusion that the
anonymous caller was motivated by Giron Garcia’s status as a Guatemalan woman
or as a member of the Giron Garcia family. See Bringas-Rodriguez, 850 F.3d at
1059. The record would support a reasonable inference that the anonymous caller
was motivated by a purely personal dispute that she had with Giron Garcia, and
“‘[p]urely personal retribution’ is not persecution ‘on account of’ a protected
ground.” Garcia v. Wilkinson, 988 F.3d 1136, 1144–45 (9th Cir. 2021) (alteration
in original) (citation omitted). On this record, the agency permissibly rejected, as
unduly speculative, Giron Garcia’s contention that the caller acted based on her
membership in her proposed social groups.
3
The petition for review is DENIED.1
1
In a supplemental letter under Federal Rule of Appellate Procedure 28(j),
Petitioners contend that the Immigration Court lacked jurisdiction because they
were served with Notices to Appear that failed to designate a date and time to
appear before an immigration judge. Petitioners acknowledge, however, that they
were later served with hearing notices containing this information. Their argument
on this score is thus foreclosed by our decision in Karingithi v. Whitaker, 913 F.3d
1158, 1161 (9th Cir. 2019).
4