Flores Dominguez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARITZA FLORES DOMINGUEZ, No. 21-1394
Agency No.
Petitioner, A202-193-388
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023**
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Maritza Flores Dominguez, a native and citizen of El Salvador, petitions
pro se for review of a Board of Immigration Appeals’ (“BIA”) decision affirming
the Immigration Judge’s (“IJ”) denial of her applications for asylum, withholding
of removal, cancellation of removal, and protection under the Convention Against
Torture (“CAT”). We review the BIA’s legal conclusions de novo and its factual
*
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).
findings for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059 (9th Cir. 2017) (en banc). Where, as here, the BIA agrees with the IJ and
adds its own reasoning, we review both decisions. Gonzalez-Castillo v. Garland,
47 F.4th 971, 976 (9th Cir. 2022). We dismiss in part and deny in part the petition
for review.
As an initial matter, Flores Dominguez raises for the first time several
issues and facts not in the record. She argues that the agency violated due process
by failing to consider “any proposed particular social groups that [she] could have
asserted membership in,” arguing that “family” could be asserted as a nexus to a
protected ground. She states that “the father of Petitioner’s child was abusive
towards her” and claims she will be tortured by “her ex partner.” Id. Because
Flores Dominguez failed to raise these arguments before the BIA, we decline to
consider them. See Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113–14 (2023)
(holding that 8 U.S.C. § 1252(d)(1) is a non-jurisdictional claim-processing rule).
We lack jurisdiction over Flores Dominguez’s challenges to the denial of
her cancellation application for lack of hardship to her United States’ citizen
children. See 8 U.S.C. § 1252(a)(2)(B). We have held that “matters of
governmental grace, such as adjustment of status and cancellation of removal
relief are discretionary judgments not subject to review.” Martinez v. Clark, 36
F.4th 1219, 1228 (9th Cir. 2022). While we retain jurisdiction to review
“colorable” constitutional challenges, Martinez-Rosas v. Gonzales, 424 F.3d 926,
930 (9th Cir. 2005), Flores Dominguez’s assertion that the BIA applied the wrong
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legal standard in violation of her due process rights fails to reach that bar. The
BIA correctly considered whether her qualifying relative would suffer
“exceptional and extremely unusual hardship” if she were removed. Though
Flores Dominguez believes she has shown the necessary hardship, “traditional
abuse of discretion challenges recast as alleged due process violations do not
constitute colorable constitutional claims that would invoke our jurisdiction.”
Martinez-Rosas, 424 F.3d at 930.
We have jurisdiction over the remainder of Flores Dominguez’s claims
under 8 U.S.C. § 1252. Flores Dominguez’s request for asylum relief is time-
barred. She filed her asylum application ten years after entering the United States.
Her former counsel conceded before the IJ that she was subject to the one-year
bar, and Flores Dominguez did not ask to withdraw this concession.
Nevertheless, she argues that she qualified for an exception to the filing deadline
as a member of the Mendez Rojas certified class in Mendez Rojas v. Johnson, 305
F. Supp. 3d 1176 (W.D. Wash. 2018). The BIA correctly rejected her class
membership claim because she has not been in DHS custody, a requirement for
both classes, and she has not otherwise shown how she qualifies. See Mendez
Rojas, 305 F. Supp. 3d at 1179. This exception is unavailable, and her asylum
application is untimely.
The BIA also did not err in denying Flores Dominguez withholding of
removal because she has not demonstrated past persecution or a clear probability
of future persecution on a protected ground. The unfulfilled threats that Flores
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Dominguez received from Luis were distressing; “[t]hough condemnable, these
threats were not ‘so overwhelming so as to necessarily constitute persecution.’”
Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021) (quoting
Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995)). Flores Dominguez
acknowledges that she only received verbal threats from Luis and was not
physically harmed. Luis also began extorting her family when she refused to be
his girlfriend. While extortion plus threats of violence may rise to past
persecution, see Ayala v. Sessions, 855 F.3d 1012, 1021 (9th Cir. 2017), Flores
Dominguez has not alleged that she herself was extorted, only members of her
family, and she has not shown that the harm occurred on the basis of a protected
ground. Substantial evidence supports the BIA’s determination that future
persecution is also lacking. Her family continues to reside in the same home,
they have not been contacted by Luis in over a decade, and Flores Dominguez
returned to visit her ill mother in 2016 without incident. “The ongoing safety of
family members in the petitioner’s native country undermines a reasonable fear
of future persecution.” Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021).
A petitioner seeking CAT protection must show that it is “more likely than
not he or she would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 208.16(c)(2). Because the past unfulfilled verbal threats and
harassment did not rise to the level of persecution, “it necessarily falls short of
the definition of torture.” Sharma, 9 F.4th at 1067. Flores Dominguez’s safe
visit in 2016 without contact from Luis indicates that she could safely internally
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relocate to avoid torture. The record does not compel reversal of the BIA’s CAT
denial.
PETITION DISMISSED in part; DENIED in part.
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