Izaguirre-Arias v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BELSY YAMILETH IZAGUIRRE- No. 22-1627
ARIAS, et al. Agency Nos.
A205-525-343
Petitioners, A205-525-346
A205-525-344
v.
A205-525-345
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 25, 2023**
Portland, Oregon
Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.
Petitioners Belsy Izaguirre-Arias and three of her children, natives and
citizens of Honduras, seek review of the Board of Immigration Appeals’s
(BIA’s) dismissal of their appeal from the order of an Immigration Judge (IJ)
denying asylum, withholding of removal, and protection under the United
*
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).
Nations Convention Against Torture (CAT). We deny the petition.
Petitioners entered the United States without inspection in 2012 and were
charged with removability that same year. In 2017, Petitioners conceded
removability and applied for asylum, withholding of removal, and CAT
protection.1 Izaguirre-Arias credibly testified that her family fears gang
violence in Honduras because her uncle was killed by gang members shortly
before the family fled to the United States, and her brother was killed by gang
forces while the family was living in the United States.
The IJ denied relief on several grounds. First, the IJ concluded that
Petitioners’ asylum applications were untimely. In the alternative, the IJ found
that Petitioners failed to establish past persecution or a well-founded fear of
future persecution on account of a protected ground, as required for asylum and
withholding of removal. See Garcia v. Wilkinson, 988 F.3d 1136, 1143, 1146
(9th Cir. 2021) (explaining that asylum and withholding applicants “must
demonstrate a nexus between [their] past or feared harm and a protected
ground”). While Petitioners alleged that gangs in Honduras targeted members
of their family, the IJ found no evidence that the killings were motivated by
family membership, but rather by unrelated motives like gang recruitment and
membership in a rival gang. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th
1
Petitioners each filed separate applications for relief. The IJ denied each
application, but Petitioners only challenge the denial of Izaguirre-Arias’s
application. We consider her children’s claims as derivative of hers. See 8
U.S.C. § 1158(b)(3).
2 22-1627
Cir. 2010) (A petitioner’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” (citation omitted)). Finally, the IJ found that even if
Petitioners did establish a well-founded fear of persecution, they still would not
be eligible for asylum or withholding because they did not show a likelihood of
persecution by government forces or forces the Honduran government is unable
or unwilling to control.2 See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065
(9th Cir. 2020) (holding that a failure to show government inability or
unwillingness to address persecution is fatal to asylum and withholding claims).
On appeal to the BIA, Petitioners challenged the IJ’s determination that
their asylum application was untimely. But Petitioners did not challenge the
IJ’s independently dispositive conclusions that they failed to establish: (1) past
persecution or a well-founded fear of future persecution; or (2) that the
Honduran government is unable or unwilling to address gang violence.
Accordingly, the BIA deemed these issues waived and dismissed the appeal.3
2
The IJ denied Petitioners’ application for CAT protection because they “failed
to show that they would more likely than not be tortured if removed to
Honduras.” Petitioners did not challenge this determination before the BIA. To
the extent Petitioners challenge denial of their CAT claim before this court, we
deny the petition for lack of exhaustion. See Santos-Zacaria v. Garland, 143 S.
Ct. 1103, 1114 (2023).
3
The BIA did not address Petitioners’ timeliness argument, stating that it “need
not address the Immigration Judge’s alternative findings or the respondent’s
other arguments on appeal. Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.
2004) (courts and agencies are not required to decide issues unnecessary to the
results they reach).
3 22-1627
Before this court, Petitioners argue that the BIA abused its discretion by
failing to consider evidence that the Honduran government is unable or
unwilling to control gang violence. But Petitioners did not advance this
argument or discuss any evidence of government acquiescence before the BIA.
Instead, their brief to the BIA asserted only that “the news articles and available
country reports” in the record “establish the inherent problems with
uncontrolled gangs in Honduras.” This general statement does not amount to an
argument that the Honduran government is unwilling or unable to control gang
violence. See Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011) (holding that a
petitioner “cannot satisfy the exhaustion requirement by making a general
challenge to the [agency’s] decision, but, rather, must specify which issues form
the basis of the appeal” (quoting Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.
2004)). Accordingly, we agree with the government that Petitioners failed to
exhaust this argument before the BIA. See 8 U.S.C. § 1252(d)(1) (this court
“may review a final order of removal only if” the noncitizens have “exhausted
all administrative remedies available”); Umana-Escobar v. Garland, 69 F.4th
544, 550 (9th Cir. 2023) (noting that although 8 U.S.C. § 1252(d)(1) is a claim
processing rule rather than a jurisdictional bar, this court “must enforce” it if
properly raised by the government (quoting Fort Bend County v. Davis, 139 S.
Ct. 1843, 1849 (2019)).4
4
Petitioners also argue that the BIA abused its discretion by failing to review
the IJ’s timeliness determination. We decline to consider this argument because
4 22-1627
PETITION DENIED.
Petitioners’ failure to exhaust the merits question of whether the Honduran
government is unable or unwilling to control gang violence is dispositive. See
Gonzalez-Veliz v. Garland, 996 F.3d 942, 949 (9th Cir. 2021) (“As a general
rule courts and agencies are not required to make findings on issues the decision
of which is unnecessary to the results they reach.” (quoting INS v. Bagamasbad,
429 U.S. 24, 25 (1976)).
5 22-1627