Esmeralda Gutierrez Aguirre v. Merrick Garland

FILED
NOT FOR PUBLICATION
JUL 7 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESMERALDA GUTIERREZ AGUIRRE; No. 20-70396
et al.,
Agency Nos. A208-417-962
Petitioners, A208-417-963
A208-417-964
v. A208-417-965
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 17, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and BRESS and BUMATAY, Circuit Judges.
Esmeralda Gutierrez Aguirre and her minor children, natives and citizens of
Mexico, petition for review of a Board of Immigration Appeals (BIA) decision
denying their claims for asylum and withholding of removal, rejecting their due
*
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).
process claims, and denying their motion to remand their case to the immigration
judge (IJ) for the consideration of new evidence. We have jurisdiction under 8
U.S.C. § 1252, and we deny the Petition for Review.
We review the BIA’s findings of fact for substantial evidence and its legal
conclusions de novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We
review the denial of a motion to remand for abuse of discretion. Kwong v. Holder,
671 F.3d 872, 880 (9th Cir. 2011). Because the parties are familiar with the history
of this case, we need not recount it here.
I
Substantial evidence supports the BIA’s conclusion that the petitioners did
not establish past persecution because the harm they experienced at the hands of a
gang lacked the requisite nexus to a protected ground. The BIA reasonably found
that the petitioners were targeted solely “as a means to an end”—gang
recruitment—and not on account of their membership in any of their proffered
family-based particular social groups (PSGs). Matter of L-E-A-, 27 I. & N. Dec.
40, 45 (BIA 2017), overruled on other grounds by Matter of L-E-A-, 27 I. & N.
Dec. 581 (AG 2019). The BIA’s conclusion that the petitioners lacked a well-
founded fear of future persecution is supported by substantial evidence for the
same reason.
The BIA correctly concluded that any error in the IJ’s application of the
nexus standard for withholding to the petitioners’ asylum claim was harmless
because the withholding standard is the less demanding of the two standards.
Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). The BIA correctly
construed the IJ’s decision as finding no nexus to a protected ground and did not
engage in improper factfinding by affirming that finding. Because the BIA
properly rejected the petitioners’ asylum and withholding claims on the basis of
nexus alone, see INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam); Sanjaa
v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017), any error in the BIA’s description
of current caselaw on the cognizability of family-based PSGs is harmless.
Likewise, the petitioners’ challenges to the IJ’s state participation and relocation
findings, which the BIA did not adopt, are inapposite and outside the scope of our
review.1 See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011).
1
We lack jurisdiction over the petitioners’ unexhausted claim that the BIA
conflated the ultimate standards of proof for asylum and withholding. See Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
II
The petitioners are not entitled to relief on the basis of a due process
violation. We grant a petition for review based on a due process violation “if (1)
the proceeding was so fundamentally unfair that the [petitioner] was prevented
from reasonably presenting his case, and (2) the [petitioner] demonstrates
prejudice, which means that the outcome of the proceeding may have been affected
by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th
Cir. 2006) (internal citations and quotations omitted).
The petitioners have not demonstrated prejudice from either of the
procedural decisions they challenge. The IJ’s denial of the petitioners’ motion for
Gutierrez Aguirre’s husband to testify telephonically is unlikely to have affected
the outcome of the case. The IJ accepted his declaration, Gutierrez Aguirre
credibly testified to the same facts, and nothing in the record suggests his
testimony could have strengthened the petitioners’ claims as to the dispositive
issue of nexus. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).
Likewise, the petitioners have not shown how the IJ’s failure to invite their lawyer
to give closing arguments prejudiced them.2
2
We lack jurisdiction over the petitioners’ unexhausted argument that the
absence of closing argument deprived them of the right to counsel. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
III
The BIA did not abuse its discretion in denying the petitioners’ motion to
remand their case to the IJ to consider new evidence. New evidence presented in a
motion to reopen must be material, must have been unavailable at the former
hearing, and must be “likely [to] change the result in the case.” Shin v. Mukasey,
547 F.3d 1019, 1025 (9th Cir. 2008); 8 C.F.R. § 1003.2(c)(1). The BIA has
“discretion to deny a motion to reopen even if the party moving has made out a
prima facie case for relief.” 8 C.F.R. § 1003.2(a). The BIA reasonably concluded
that the declaration from Gutierrez Aguirre’s mother concerning new threats from
Los Sicarios was unlikely to change the outcome of the case because it did not
strengthen the petitioners’ claims that their feared harm was on account of a
protected ground.
PETITION DENIED.