Diego Castaneda v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRANCITO CASTANEDA DE LEON, No. 21-470
Agency No.
Petitioner, A099-504-282
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
PAOLA DIEGO CASTANEDA, No. 21-471
Petitioner, Agency No.
A202-097-231
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
ISABEL DIEGO CASTANEDA, No. 21-472
Petitioner, Agency No.
A202-097-233
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
SHEYLA DIEGO CASTANEDA, No. 21-473
Petitioner, Agency No.
A202-097-232
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 26, 2023**
Pasadena, California
Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.
Trancito Castaneda de Leon and her three children—Paola, Isabel, and
Sheyla Diego Castaneda—seek review of an order from the Board of Immigration
Appeals (BIA) dismissing their appeals of an Immigration Judge’s (IJ) denial of
their motion to terminate removal proceedings and of their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We review the
agency’s legal conclusions de novo and its factual findings for substantial
evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). We
deny the petition for review.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
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1. The BIA correctly determined that the Notices to Appear that
initiated the removal proceedings against Castaneda de Leon and her children
vested jurisdiction with the IJ, even if they did not contain the date and time of
the initial removal hearing. See United States v. Bastide-Hernandez, 39 F.4th
1187, 1188 (9th Cir. 2022) (en banc).
2. The BIA properly denied Castaneda de Leon and her children’s
asylum and withholding claims. The BIA did not err in determining that
Castaneda de Leon’s neighbor’s threats to “do something” to her or to “take” one
of her children if she did not repay a debt did not establish past persecution. The
neighbor’s threats were vague, and she did not follow through on them. See
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); Villegas Sanchez
v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021).
In addition, substantial evidence supports the BIA’s determination that
Castaneda de Leon and her children cannot establish a risk of persecution based
on race or family membership. There is no nexus between these characteristics
and the harm that they fear. The record demonstrates that the neighbor targeted
Castaneda de Leon because of her failure to repay the debt, not because of her
Konjobal ethnicity. And Castaneda de Leon’s family members have not been
harmed in Guatemala, undermining her and her children’s race- and family-based
claims for relief. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010).
Moreover, the BIA correctly determined that Castaneda de Leon and her
children are not entitled to relief based on their status as Guatemalans returning
3 21-470
from the United States who are perceived to be wealthy. We have “clearly held
that ‘imputed wealthy Americans’ are not a discrete class of persons recognized
as a particular social group.” Barbosa v. Barr, 926 F.3d 1053, 1060 (9th Cir.
2019) (quoting Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016)).
Finally, the BIA correctly determined that Castaneda de Leon and her
children are not entitled to relief based on the proposed particular social group
consisting of “Konjobal women who, while living without a man in their lives,
were threatened in the past and will be persecuted, tortured, or killed upon return
to Guatemala and would not be protected by the police because of their Konjobal
race.” The BIA correctly determined that this proposed particular social group is
not cognizable because it lacks particularity and social distinction. Any other
errors in its analysis are harmless. See Zamorano v. Garland, 2 F.4th 1213, 1228
(9th Cir. 2021).
First, substantial evidence supports the BIA’s conclusion that this group
lacks social distinction, as there is no evidence that Guatemalans perceive women
living without a man (regardless of ethnicity) to be a distinct group. See Diaz-
Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020). And even if people target
Castaneda de Leon because they perceive her as weak due to her ethnicity or
relationship status, this consideration does not establish social distinction because
social distinction is not “assessed from the perspective of the persecutors.” Id.Second, the BIA correctly determined that the group is not defined with
particularity. See Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020). The
4 21-470
group lacks “definable boundaries.” See id. (quoting In re W-G-R-, 26 I. & N.
Dec. 208, 214 (BIA 2014)). It is unclear whether it includes only single women
or women who are temporarily separated from a partner, and it is unclear which
Konjobal women living without a man “would not be protected by the police
because of their Konjobal race.”
3. The BIA properly denied Castaneda de Leon and her children’s CAT
claims. Substantial evidence supports the BIA’s determination that the
neighbor’s threats did not constitute torture. See Kaur v. Garland, 2 F.4th 823,
836 (9th Cir. 2021). And the record does not compel the conclusion that the
Guatemalan government would acquiesce in future torture. Even if police cannot
assist Castaneda de Leon because of a language barrier, ineffective law
enforcement does not establish government acquiescence. Garcia-Milian v.
Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Anyway, the record demonstrates
that Guatemala has tried to combat violence against indigenous women. Finally,
the BIA did not err by failing to consider whether relocation would be reasonable
because “the reasonableness of a relocation is not relevant to a CAT claim.”
Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022).
4. We will not consider Castaneda de Leon and her children’s argument
that the IJ violated their due process rights because it is unexhausted. See Amaya
v. Garland, 15 F.4th 976, 986 (9th Cir. 2021). And their argument that the BIA
violated their due process rights fails because they do not show that any violation
prejudiced them or prevented them from presenting their case. See Olea-Serefina
5 21-470
v. Garland, 34 F.4th 856, 866 (9th Cir. 2022).
PETITION DENIED.
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