Rubidia Guzman-Hernandez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBIDIA ALBERTINA GUZMAN- No. 17-73156
HERNANDEZ; JOSSELYN ANDREA
LOPEZ GUZMAN; DANNY JOSUE Agency Nos. A208-675-611
LOPEZ GUZMAN, A208-675-612
A208-675-613
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Rubidia Albertina Guzman-Hernandez and her two derivative applicant
children, Josselyn Andrea Lopez Guzman and Danny Josue Lopez Guzman
*
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).
(together, Petitioners), petition for review of a Board of Immigration Appeals
(BIA) decision dismissing their appeal from an order of an immigration judge (IJ)
denying their applications for asylum, withholding of removal, and relief under the
Immigration and Nationality Act and the Convention Against Torture (CAT).
Petitioners are citizens of El Salvador. We have jurisdiction under 8 U.S.C. § 1252.
As the BIA did not adopt or rely on the IJ’s decision, we review only the BIA’s
decision. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). We
deny the petition for review.
1. “[T]he failure of [a notice to appear (NTA)] to include time and date
information does not deprive the immigration court of subject matter jurisdiction.”
United States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc).
The IJ thus had jurisdiction over Petitioners’ case even though they were served
with NTAs that did not specify the time or date of their initial hearing.
2. Substantial evidence supports the agency’s denial of asylum and
withholding of removal based on Petitioners’ failure to show past persecution or a
well-founded fear of future persecution. Guzman-Hernandez argues that she
experienced past persecution because she was the victim of death threats by gang
members.1 But substantial evidence, including Guzman-Hernandez’s own
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We do not have jurisdiction to consider Guzman-Hernandez’s additional
arguments on appeal about sexual assault and rape amounting to past persecution,
as she did not raise them before the BIA. See Barron v. Ashcroft, 358 F.3d 674,
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testimony that she was never harmed even after she affirmatively confronted a
gang member, supports the BIA’s determination that those threats did not rise “to
the level of persecution.” See Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000)
(unfulfilled threats, without more, “constitute past persecution in only a small
category of cases, and only when the threats are so menacing as to cause
significant actual suffering or harm” (cleaned up)).
Guzman-Hernandez also argues that she has a well-founded fear of future
persecution due to the death threats and current gang violence in El Salvador.
Substantial evidence supports the BIA’s determination that Guzman-Hernandez
has not presented “a reasonably objective well-founded fear of persecution,” as the
gang member only told Guzman-Hernandez that “[i]f you don’t like it you already
know,” and did not attempt to cause her any harm. See Sharma v. Garland, 9 F.4th
1052, 1065–66 (9th Cir. 2021) (“vague threats that led to no harm” are insufficient
to compel the conclusion that alleged persecutors would have a continuing interest
in Petitioner). And “a generalized or random possibility of persecution” due to
country conditions is not sufficient to establish a well-founded fear of future
persecution. Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir. 1998).
678 (9th Cir. 2004) (no subject-matter jurisdiction over legal claims “not presented
in administrative proceedings below”). In any event, Petitioners do not point to any
evidence that Guzman-Hernandez was sexually assaulted or raped.
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3. Substantial evidence supports the BIA’s conclusion that Petitioners do
not qualify for CAT relief. Petitioners point to country condition reports discussing
violence by public officials and the military in El Salvador. But generalized
evidence of violence in a country is insufficient to prove that a specific individual
faces a likelihood of mistreatment rising to the level of torture. See Lalayan v.
Garland, 4 F.4th 822, 840 (9th Cir. 2021) (submitted country reports were
insufficient to establish eligibility for CAT relief because they did not indicate any
particularized risk of torture).
PETITION DENIED.
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