Cindy Olmedo Garcia v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY SULEYMA OLMEDO GARCIA; No. 15-73582
CINDY JEANMILLETTE HERNANDEZ
OLMEDO, Agency Nos. A206-680-495
A206-680-496
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 18, 2022**
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and LYNN,*** District Judge.
Cindy Suleyma Olmeda Garcia, a citizen of El Salvador, seeks review of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel previously granted the parties’ joint motion to submit this
case on the briefs and record and without oral argument. See Fed. R. App. P.
34(a)(2).
***
The Honorable Barbara M. G. Lynn, Chief United States District Judge
for the Northern District of Texas, sitting by designation.
Board of Immigration Appeals (BIA) decision dismissing her appeal of an
Immigration Judge (IJ) order denying her claims for asylum, withholding of
removal, and relief under the Convention Against Torture.1 We review for
substantial evidence and may grant relief only if the record compels a contrary
conclusion. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and dismiss in
part.2
1. Before this Court, Garcia argues that her “status as an ARENA
member” and “her resistance to gang activities constituted a political opinion,” and
that such facts “may have motivated persecution by FMLN gang members.” First,
Garcia failed to exhaust before the BIA any claim based on her work for the ARENA
political party. Accordingly, we lack jurisdiction to review this claim. See Zara v.
Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (holding that a “failure to raise an issue
in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that
question and deprives the court of jurisdiction to hear the matter” (quotations and
alterations omitted)).
1
Garcia’s daughter, Cindy Jeanmillette Hernandez Olmedo, also a petitioner here,
seeks derivative relief based on Garcia’s application for asylum.
2
Garcia does not challenge the BIA’s determination that she is ineligible for CAT
relief. Garcia has thus forfeited any challenge to the denial of CAT protection. See
Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
2
Second, we disagree with the government that Garcia also failed to exhaust
her claim based on an alleged anti-gang political opinion. That theory is fairly set
forth in Garcia’s brief to the BIA, and the BIA also addressed the nexus issue in its
decision. While Garcia’s claim is thus exhausted to this extent, substantial evidence
supports the BIA’s denial of relief. “To be eligible for asylum, a petitioner has the
burden to demonstrate a likelihood of ‘persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir.
2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). “To be eligible for withholding of
removal, the petitioner must discharge this burden by a clear probability.” Id.(quotations omitted).
The BIA permissibly concluded that Garcia failed to show her past
mistreatment or fears of future persecution bore a nexus to her alleged resistance to
gang activities. While Garcia’s allegations involve tragic circumstances, Garcia
presented no evidence that she actively resisted gang activities other than refusing
their extortion demands. Further, Garcia did not indicate before the IJ that she
believed she was targeted for any anti-gang activities. Substantial evidence thus
supports the BIA’s denial of Garcia’s asylum claim based on its conclusion that
Garcia’s past mistreatment and fears of future harm relate to general criminality and
not a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
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(“An alien’s desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground.”). In
Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017), we held that “in mixed
motive cases,” an applicant for withholding of removal need only prove that a
protected ground is “a reason” for her persecution, not “one central reason,” as
required for an asylum claim, id. at 359–60. However, substantial evidence supports
the BIA’s denial of Garcia’s withholding of removal claim because she failed to
meet her burden of demonstrating a clear probability of persecution on a protected
ground.
2. Garcia also argues that the BIA erred in not addressing her argument
that her past mistreatment rose to the level of persecution. But the BIA declined to
address past persecution because the lack of nexus to a protected ground was
independently dispositive of Garcia’s applications for asylum and withholding of
removal. Like the BIA, we thus have no occasion to consider whether Garcia
demonstrated past persecution. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(explaining the Court, like the agency, is “not required to make findings on issues
the decision of which is unnecessary to the results [it] reach[es]”).
PETITION DENIED IN PART AND DISMISSED IN PART.
4