Ramirez-Velasquez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERTA LIDIA RAMIREZ-VELASQUEZ, No. 21-1282
Petitioner, Agency No. A209-837-525
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 3, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Berta Lidia Ramirez-Velasquez, a citizen of El Salvador, seeks review of the
Board of Immigration Appeals’ (“BIA”) denial of her appeal from an Immigration
Judge’s (“IJ”) order denying her application for asylum and withholding of
removal.1 This court has jurisdiction under 8 U.S.C. § 1252 and denies the petition.
*
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)(C).
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Ramirez-Velasquez forfeited any Convention Against Torture claims by failing to
raise them in her opening brief. See Perez-Camacho v. Garland, 54 F.4th 597, 602
n.2 (9th Cir. 2022).
1. Substantial evidence supports the BIA’s conclusion that Ramirez-
Velasquez failed to establish that she is eligible for asylum and withholding of
removal. To establish eligibility for asylum, Ramirez-Velasquez must demonstrate
that she suffered past persecution or has a well-founded fear of future persecution
on account of her membership in a particular social group. 8 U.S.C. § 1101(a)(42).
For withholding of removal, she must show past persecution or that it is more likely
than not that she will face future persecution. Aden v. Wilkinson, 989 F.3d 1073,
1085–86 (9th Cir. 2021).
The BIA determined that the proffered group that Ramirez-Velasquez raised
with the IJ—“members of the Ramirez family which includes a young male who
refuses to join the gang and family members who refuse to cooperate with the gangs
to make sure that the child joins the gang”—lacked social distinction.2 The BIA
further determined that Ramirez-Velasquez did not establish that she experienced
past harm rising to the level of persecution or that her family ties would be at least
one central reason for the harm she suffered and fears. Although “the family remains
the quintessential particular social group,” Rios v. Lynch, 807 F.3d 1123, 1128 (9th
Cir. 2015), substantial evidence supports the BIA’s findings as to the lack of
2
The BIA properly declined to consider Ramirez-Velasquez’s proposed social group
of “parents of minors of gang recruitment age that rebuff the gang’s efforts” because
it was not advanced before the IJ. See Honcharov v. Barr, 924 F.3d 1293, 1297 (9th
Cir. 2019) (concluding that the BIA “did not err when it declined to consider [the]
proposed social groups that were raised for the first time on appeal”).
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persecution and nexus to a protected ground.
In order to establish “past persecution, an applicant must show: (1) an
incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’
one of the statutorily-protected grounds; and (3) is committed by the government or
forces the government is either ‘unable or unwilling’ to control.” Navas v. INS, 217
F.3d 646, 655–56 (9th Cir. 2000). Here, Ramirez-Velasquez testified that she and
her son were threatened by gang members who wanted to recruit the son. She further
testified, however, that neither she nor her son was physically harmed. Such
“[u]nfulfilled threats are very rarely sufficient to rise to the level of persecution.”
Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021); see also Villegas Sanchez v.
Garland, 990 F.3d 1173, 1179 (9th Cir. 2021) (“Mere threats, without more, do not
necessarily compel a finding of past persecution.”). Ramirez-Velasquez thus has not
presented evidence compelling a finding of past persecution, and substantial
evidence supports the BIA’s finding that she is not entitled to a presumption of future
persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).
Substantial evidence also supports the BIA’s finding that Ramirez-Velasquez
failed to establish a nexus between the harm she experienced and a protected ground.
Ramirez-Velasquez has pointed to nothing in the record indicating that she or her
son was threatened on account of their family ties, as opposed to the gang’s general
desire to sustain its criminal enterprise. Accordingly, the record does not compel a
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finding that a protected ground was more than “incidental, tangential, superficial, or
subordinate to another reason for harm”—namely, the gang’s criminal motives.
Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (quoting In re J-B-N &
S-M, 24 I. & N. Dec. 208, 214 (2007)).
2. Ramirez-Velasquez’s due process claims fail. Ramirez-Velasquez
argues for the first time that her due process rights were violated when the IJ found
that she did not request voluntary departure without first informing her about the
availability of such a remedy. This court may review a final order only when all
administrative remedies available are exhausted. 8 U.S.C. § 1252(d)(1). Because
Ramirez-Velasquez did not raise this due process claim before the BIA, it is
unexhausted, and we do not review it.
Ramirez-Velasquez also argues that the BIA violated her due process by
denying her claim without an opinion. Contrary to her assertion, however, the BIA
did issue an opinion explaining its reasons for denying her desired relief. Therefore,
Ramirez-Velasquez’s second due process claim also fails.
PETITION DENIED.
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