Huber Carlon Ambrocio v. William P. Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUBER CARLON AMBROCIO and No. 17-73224
MARICELA HERNANDEZ-NOLASCO,
Agency Nos. A076-367-607
Petitioners, A076-367-608
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2019**
Before: TROTT, SILVERMAN and TALLMAN, Circuit Judges.
Maricela Hernandez-Nolasco (“Maricela” or “petitioner”) entered the United
States illegally during June 1988. The Department of Homeland Security (“DHS”)
discovered her illegal presence nine years later, in June of 1997. During asylum
proceedings, Maricela requested cancellation of removal when her husband, Huber
*
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).
Carlon Ambrocio (“Huber”), withdrew his asylum application in which she was a
derivative beneficiary, or rider, pursuant to 8 U.S.C. § 1158(b)(3). Petitioner’s
opening brief explained the reason for withdrawing their asylum application was
that they did not believe they could make an effective claim for such relief at that
time.
On June 12, 1998, an immigration judge denied their application for
cancellation of removal. The Board of Immigration Appeals (“BIA”) dismissed
their appeal in a final order dated March 9, 2000. We denied their petition for
review on June 18, 2002.
Fifteen years later, on April 12, 2017, Maricela filed with the BIA a motion
to reopen. The motion indicated that Huber had been deported to Mexico but that
she had been able to remain here due to stays of removal granted by the DHS.1 A
new asylum application accompanied her motion to reopen. For various reasons,
the BIA denied her motion, concluding inter alia that she had failed to demonstrate
“materially changed circumstances” which might excuse the untimeliness of her
request, and that she had not demonstrated prima facie eligibility for the relief she
sought. See INS v. Doherty, 502 U.S. 314, 323 (1992). The BIA issued its final
1
Huber is listed as a party to this petition, but he did not submit his own asylum
application with Maricela’s, he was not included as a rider on her application, and
he has not asserted any claims on his own or offered any evidence on his behalf.
Therefore, we grant the government’s motion to dismiss him from this petition.
[Dkt. No. 15]
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order of removal on November 28, 2017.
As to petitioner’s claims based on her status as (1) a Mexican returnee, (2)
her membership in the social group of business owners and their families, and (3)
her opposition to gangs or drug cartels, the BIA did not abuse its discretion in
determining that she failed to establish prima facie eligibility for asylum or
withholding of removal. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
2010) (the BIA can deny a motion to reopen for failure to establish prima facie
eligibility for the relief sought); Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir.
2018) (stating standards for asylum and withholding of removal); see also
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (“returning
Mexicans from the United States” is too broad to qualify as a cognizable social
group); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’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”). We reject petitioner’s
contention that the BIA failed to make a case-specific assessment of these claims.
With respect to petitioner’s claim based on an increase in violence against
women, the BIA did not abuse its discretion by finding that Maricela had not
established materially changed country conditions in Mexico sufficient to qualify
for the regulatory exception to the time limitation for filing a motion to reopen.
See 8 C.F.R. § 1003.2(c)(3)(ii). As the BIA noted, Maricela relied “primarily [but
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not exclusively] on an article describing gang related violence, which notes that
between 2007 and 2012, total murders rose 112 percent and that most murders are
young men, but that the percentage of women killed between 2007 and 2012 rose
155% to 2,764 . . . .” The BIA dismissed her argument because “this article does
not demonstrate changed country conditions or circumstances material to the
respondent’s claim of persecution as a member of a particular group of Mexican
women who are abused because they are women.” The BIA cited official Country
Reports for the proposition that violence against women was a serious unreported
problem in 2000, and it concluded that “[w]hile the respondent describes general
conditions in Mexico, she does not demonstrate that her situation is appreciably
different from the dangers faced by society in general. Therefore, she has not
presented sufficient evidence establishing materially changed circumstances.” In
so concluding based on the record, the BIA neither ignored her evidence nor
abused its considerable discretion.
In her opening brief, petitioner does not challenge the BIA’s denial of her
motion to reopen to pursue CAT relief or under the agency’s sua sponte authority.
See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not
specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DENIED.
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