Mercedes Linarez Zaldivar v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
AUG 24 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERCEDES LINAREZ ZALDIVAR, No. 13-74375
AKA Mersedes Linarez Zaldivar, AKA
Sara Oneyda, Agency No. A087-539-714
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 21, 2023**
Pasadena, California
Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.
Mercedes Linarez Zaldivar (Linarez), a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) decision
*
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).
dismissing her appeal of the Immigration Judge’s (IJ) denial of asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). Linarez’s applications were based on past harm and fear of future harm on
account of her support for Manuel Zelaya, the former President of Honduras who
was forcibly removed in the 2009 coup d’état.
“Where the BIA affirms the IJ and also adds its own reasoning, we review
the decision of the BIA and those parts of the IJ’s decision upon which it relies.”
Salguero Sosa v. Garland, 55 F.4th 1213, 1217 (9th Cir. 2022) (citation and
internal quotation marks omitted). “We review legal questions de novo” and
“factual determinations . . . for substantial evidence.” Id. We have jurisdiction
pursuant to 8 U.S.C. § 1252 and we deny the petition.
The viability of Linarez’s petition largely hinges on whether her experiences
in Honduras constituted past persecution. “[T]he standard of review for past
persecution is currently unsettled. . . .” Antonio v. Garland, 58 F.4th 1067, 1072
n.8 (9th Cir. 2023); compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir.
2021) (reviewing de novo), with Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir.
2021) (applying the substantial evidence standard). But, “we need not address
whether de novo review should apply, or discuss the nuances of the two standards,
because the harm [Linarez] suffered” did not rise to the level of persecution under
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either standard. Singh v. Garland, 57 F.4th 643, 652 (9th Cir. 2022), as amended
(citation and alteration omitted).
1. Linarez contends that the following events rose to the level of
persecution: (1) beating protestors with rubber sticks and using tear gas and water
hoses at a political protest she attended; (2) a passenger in a passing car pointing a
gun at her and looking at her in a “threatening manner”; and (3) armed men taking
her from her home against her will and threatening her. “[L]ooking at the
cumulative effect” of these incidents, we conclude that they do not rise to the level
of past persecution. Sharma, 9 F.4th at 1061–65 (citation omitted).
“Persecution is an extreme concept,” Aden v. Wilkinson, 989 F.3d 1073,
1082 (9th Cir. 2021) (citation and internal quotation marks omitted), evidenced by
“repeated, lengthy and severe harassment.” Gu v. Gonzales, 454 F.3d 1014, 1020
(9th Cir. 2006). Linarez’s kidnapping lasted approximately five minutes before
she escaped. See Prasad v. I.N.S., 47 F.3d 336, 339–40 (9th Cir. 1995) (holding
that a brief detention was insufficient to establish past persecution). Nor was there
any serious physical harm inflicted upon Linarez during the kidnapping or the
protests. See Sharma, 9 F.4th at 1061 (recognizing the repeated denial of petitions
“when, among other factors, the record did not demonstrate significant physical
harm”) (citations omitted). There was no evidence linking the incident with the
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passing car to Linarez’s political opinion. And the death threats, without more,
ordinarily do not “require a finding of past persecution.” Aden, 989 F.3d at 1082
(citations omitted); Cf. Boer-Sedano v. Gonzales, 418 F.3d 1082, 1088 (9th Cir.
2005) (holding that a police officer bringing a loaded gun to a petitioner’s head and
threatening to pull the trigger while making negative comments about petitioner’s
sexuality was a death threat constituting persecution, and the IJ erred as a matter of
law by concluding otherwise).
2. Absent a showing of past persecution, Linarez was required to
establish “a well-founded fear of future persecution.” Sharma, 9 F.4th at 1065
(citation omitted). The fear “must be objectively reasonable.” Id. Linarez failed
to satisfy this standard. There is no evidence in the record that the people Linarez
fears have any continuing interest in her specifically. See Gu, 454 F.3d at 1022
(observing that the record did not compel the conclusion that the petitioner
established a well-founded fear of future persecution when the record was “devoid
of any evidence” that the alleged persecutors had any continuing interest in the
petitioner). The denial of asylum was supported by substantial evidence. See id. at
1019.
3. To qualify for withholding of removal, Linarez must demonstrate a
“clear probability” of persecution based on a protected ground. Sharma, 9 F.4th at
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1059. This standard is “more stringent” than the well-founded fear standard for
asylum. Id. at 1066 (citation omitted). Because Linarez failed to satisfy the “lesser
burden” for asylum, her withholding of removal claim necessarily fails. Id. And
because the BIA concluded that there was no nexus to a protected ground, we need
not address the different nexus standards for asylum and withholding of removal.
See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1018 (9th Cir. 2023).
4. We deny Linarez’s petition as to her CAT claim because she failed to
raise any challenge to the BIA’s denial of CAT protection in her opening brief.
See Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004) (“We will not ordinarily
consider matters on appeal that are not specifically and distinctly argued in [the
petitioner’s] opening brief. . . .”) (citation and internal quotation marks omitted).
5. Finally, we reject as unsupported by the record Linarez’s contention
that the agency ignored, or otherwise declined to address, her request for voluntary
departure. Linarez explicitly informed the IJ that she did not seek voluntary
departure.
PETITION DENIED.
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