Francisco v. Garland

1

JUANA ANTONIO FRANCISCO; RICARDO ANDRES ANTONIO; PELEGRINA ANDRES ANTONIO; JESICA ANTONIO FRANCISCO; JUANA ANDRES ANTONIO; SEBASTIANA ANDRES ANTONIO, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 21-879

United States Court of Appeals, Ninth Circuit

June 29, 2023

NOT FOR PUBLICATION

Submitted June 26, 2023 ^[*] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A208-311-660 A208-311-661 A208-311-662 A208-311-663 A216-217-501 A216-217-502

Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.

MEMORANDUM ^[**]

Juana Antonio Francisco, a native and citizen of Guatemala, seeks review of a Board of Immigration Appeals (BIA) decision affirming the Immigration Judge's (IJ) denial of her request for relief from deportation under asylum, withholding of removal, and the Convention Against Torture (CAT).^[1] We have jurisdiction under 8 U.S.C. § 1252. The petition for review is denied.

Francisco is a member of the indigenous Kanjobal tribe in Guatemala. She entered the United States without valid immigration documentation on August 16, 2015, with some of her children including one with a congenital heart condition. Almost two years after her arrival, Francisco applied for asylum, withholding of removal, and CAT protection.

The IJ concluded that the asylum filing was untimely and that Francisco did not qualify for an exception to the one-year filing rule based on changed or extraordinary circumstances. The IJ alternatively reached the merits of the asylum and withholding claims, concluding that Francisco had not established past persecution, a well-founded fear of future persecution, or any nexus to a protected ground. For the same reasons, the IJ found her CAT claim failed. On appeal, the BIA affirmed the IJ's decision.

This court reviews the agency's legal conclusions de novo and its factual findings for substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022).

First, Francisco argues that the agency had no jurisdiction over the removal proceedings because the Notices to Appear (NTAs) did not include the date, time, or location of an initial hearing. Francisco and her children initially received NTAs ordering their appearance "at a place and time to be determined," or a date "to be set," but the immigration court later provided the particular date, time, and place of the hearings. In a nearly identical case, the Ninth Circuit ruled en banc that an NTA lacking the time and date of a petitioner's removal hearing was still sufficient to vest subject-matter jurisdiction in an immigration court. United States v. Bastide-Hernandez, 39 F.4th 1187, 1194 (9th Cir. 2022) (en banc), cert. denied, 143 S.Ct. 755 (2023). If the details are not included in the initial NTA, the immigration court is required by statute to subsequently provide notice to the parties. 8 C.F.R. § 1003.18(b). Here, Francisco and her children were notified of the details in subsequent communications. All appeared at the proper time and place. Accordingly, the agency properly exercised jurisdiction in this case.

Second, Francisco argues that the agency erred in concluding (1) that she and her children established neither past persecution nor likelihood of future harm, and (2) that her claims also failed on nexus grounds. Francisco's only allegation of past persecution arises from her daughter's medical care in Guatemala.^[2] "Persecution is an extreme concept," Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995) (internal quotation marks and citation omitted), and Francisco's family's challenges with the medical system in Guatemala are attributable to her lack of education and limited funds. Francisco fails to present evidence of anything more than an "inadequate healthcare system" or "[g]eneralized economic disadvantage," neither of which rise to the level of persecution. Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam); Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir. 2011), overruled in part by Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc). The record does not compel this panel to conclude otherwise.

Francisco also fails to provide objective evidence supporting a reasonable fear of future persecution. See Melkonian v. Ashcroft, 320 F.3d 1061, 1064-65 (9th Cir. 2003). Francisco presents (1) a general fear of kidnapping but no "individualized risk," see Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010); (2) an unsupported assertion that her daughter "will die in Guatemala," even though she received the surgery she needed in the United States; and (3) an unsupported claim that there are no Kanjobal interpreters in Guatemala City, which will make accessing healthcare difficult. Because unsupported assertions do not constitute evidence, see I.N.S. v. Phinpathya, 464 U.S. 183, 188 n.6 (1984), Francisco falls short of the required "well-founded fear of future persecution." Melkonian, 320 F.3d at 1068.

Francisco's claims also lack a "nexus to a protected ground." Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). She fails to present evidence that her potential exposure to general crime and violence in Guatemala is tied to her ...