Rodriguez Bailon v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARMENSITA RODRIGUEZ No. 23-201 BAILON; JORDAN ELIAS MARTIN Agency Nos. RODRIGUEZ, Jr.; DANA ESTEFANIA A208-778-557 MARTIN RODRIGUEZ, A208-778-558

A208-778-559 Petitioners,

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 7, 2024** Pasadena, California

Before: M. SMITH and BADE, Circuit Judges, and FITZWATER, District Judge.***

*

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).

***

The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.

Petitioner Carmensita Rodriguez Bailon and her two minor children (collectively, Petitioners) petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing their appeal of an immigration judge’s (IJ) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).1 We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual findings for substantial evidence, and we review legal questions de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).

1. Petitioners challenge the agency’s denial of asylum and statutory withholding of removal based on its determination that Petitioners failed to establish the requisite nexus between any past harm or feared future harm and a protected ground. The BIA affirmed the IJ’s determination that Petitioners were victims of general criminal activity and that they failed to show a nexus between demands from extortionists for money and the proposed particular social groups.

Substantial evidence supports the denial of asylum and withholding of removal based on the IJ’s finding, affirmed by the BIA, that Petitioners failed to establish any nexus between past harm or feared future harm and their proposed particular social groups.2 See 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.”). As the BIA concluded, the lack of a nexus to a protected ground is fatal to Petitioners’ claims for asylum and statutory withholding of removal.3 See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016); Barajas-Romero v. Lynch, 846 F.3d 351, 357–60 (9th Cir. 2017) (explaining the motive standard applicable to asylum and withholding of removal).

2. Petitioners challenge the denial of CAT protection. Because Petitioners did not meaningfully challenge the denial of CAT protection in their appeal to the BIA, they waived review of their arguments pertaining to that claim, and “fail[ed] to exhaust remedies with respect to that question.”4 Vargas v. U.S. Dept. of Immigr. & Nat., 831 F.2d 906, 907–08 (9th Cir. 1987). Therefore, we decline to review Petitioners’ claims related to the denial of CAT protection. See 8 U.S.C. § 1252(d)(1) (requiring the exhaustion of administrative remedies); see also Santos-Zacaria v. Garland, 598 U.S. 411, 419 (2023) (holding that § 1252(d)(1) is a non-jurisdictional, claim-processing rule).

PETITION DENIED.