Munguia v. Garland

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ROSALVA AZUCENA MORAN MUNGUIA; MERLIN CRISTINA ESCOBAR MUNGUIA, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 22-759

United States Court of Appeals, Ninth Circuit

August 28, 2023

NOT FOR PUBLICATION

Submitted August 23, 2023 ^[*] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A209-479-274 A209-479-275

Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.

MEMORANDUM ^[**]

Rosalva Azucena Moran Munguia (Moran Munguia), a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge (IJ) order denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).^[1] We review the BIA's decision for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1066 (9th Cir. 2021). "Under this standard, we must uphold the agency determination unless the evidence compels a contrary conclusion." Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Substantial evidence supports the denial of Moran Munguia's applications for asylum and withholding of removal. A petitioner is eligible for asylum if she is unable or unwilling to return to her home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). "'The bar for withholding of removal is higher; an applicant must demonstrate that it is more likely than not that [s]he would be subject to persecution on one of' these same five protected grounds." Guo v. Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (quoting Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014)).

Moran Munguia alleges past persecution and fear of future persecution based on her membership in a proposed social group consisting of "female family members of victims of gang violence who are assumed to have knowledge of the identities of the perpetrators." Even assuming this proposed social group is legally cognizable, Moran Munguia failed to demonstrate the required "nexus" between her past and contemplated future harm and membership in her particular social group. Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) ("The applicant must demonstrate a nexus between her past or feared harm and a protected ground.").

To establish nexus for an asylum claim, Moran Munguia must show that a protected ground "was or will be at least one central reason" for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i). For withholding of removal, there is a nexus if the petitioner shows that a protected ground was "a reason" for the past or feared harm. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017).

In this case, the record does not compel the conclusion that gang members targeted Moran Munguia because of her family ties or because she knew the identity of the gang members who killed her partner. Rather, Moran Munguia repeated throughout her testimony that gang members threatened her for financial gain. And when the IJ asked Moran Munguia if the gang members ever threatened to kill her or her daughters because she knew which gang members killed her partner, she responded that the gang members "would call me to tell me that they wanted the money." These threats from gang members who appeared to be "motivated by theft or random violence . . . bear[] no nexus to a protected ground." Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010); see also, e.g., Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir. 2021) (noting that "generalized crime and violence" in a country "cannot be a basis for granting asylum to any citizen of that country in the United States").

2. Substantial evidence supports the denial of CAT relief. "To qualify for CAT relief, a petitioner must show that she more likely than not will be tortured if she is removed to her native country." Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Torture is "any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person . . . for any reason based...