DORIS RODRIGUEZ-ZUNIGA, ET AL V. MERRICK GARLAND, No. 19-72024 (9th Cir. 2023)
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Petitioner testified that she was afraid to return to Guatemala because a woman had attempted to rob her after she withdrew money from a bank. The woman told Petitioner that she targeted her because Petitioner had family in the United States and a lot of money. The woman also threatened that Petitioner’s son would “pay for it” due to Petitioner’s refusal to give her the money. Petitioner and her son asserted that she had suffered past persecution and had a well-founded fear of future persecution on account of her political opinion of refusing to submit to violence by criminal groups or gangs and their claimed membership in three particular social groups: “Guatemalan families that lack an immediate family male protector,” “Guatemalan women,” and “immediate family members of Petitioner.”
The Ninth Circuit denied Petitioner and her son’s petition for review of the Board of Immigration Appeals’ dismissal of their appeal of an immigration judge’s denial of asylum and related relief. The panel held that Petitioner failed to show that the agency erred in concluding that her proposed social group comprised of “Guatemalan families that lack an immediate family male protector” was not cognizable. The panel also concluded that substantial evidence supported the agency’s determination that Petitioner had not expressed a political opinion. The panel explained that Petitioner’s refusal to give money to the threatening robber was not evidence of a “conscious and deliberate” decision that would naturally result in attributing a political position to her and that she instead simply reacted to being robbed.
Court Description: Immigration The panel denied Doris Amanda Rodriguez-Zuniga’s and her son Nelson Gabriel Tobar-Rodriguez’s petition for review of the Board of Immigration Appeals’ dismissal of their appeal of an immigration judge’s denial of asylum and related relief.
Rodriguez-Zuniga testified that she was afraid to return to Guatemala because a woman had attempted to rob her after she withdrew money from a bank. The woman told Rodriguez-Zuniga that she targeted her because Rodriguez-Zuniga had family in the United States and a lot of money. The woman also threatened that Rodriguez-Zuniga’s son would “pay for it” due to Rodriguez-Zuniga’s refusal to give her the money. Rodriguez-Zuniga and her son asserted that she had suffered past persecution and had a well-founded fear of future persecution on account of her political opinion of refusing to submit to violence by criminal groups or gangs, and their claimed membership in three particular social groups: “Guatemalan families that lack an immediate family male protector,” “Guatemalan women,” and “immediate family members of Doris Amanda Rodriguez-Zuniga.” Because the record did not compel the conclusion that Guatemalan society perceived it as a distinct group, the panel held that Rodriguez-Zuniga failed to show that the agency erred in concluding that her proposed social group comprised of “Guatemalan families that lack an immediate family male protector” was not cognizable. The panel also concluded that substantial evidence supported the agency’s determination that Rodriguez-Zuniga had not expressed a political opinion. The panel explained that Rodriguez-Zuniga’s refusal to give money to the threatening robber was not evidence of a “conscious and deliberate” decision that would naturally result in attributing a political position to her, and that she instead simply reacted to being robbed. Absent some evidence that Rodriguez-Zuniga expressed a political opinion beyond merely her resistance to being robbed, the panel concluded that the agency did not err in determining that she failed to establish nexus to a political opinion.
Turning to Rodriguez-Zuniga’s family social group claim, the panel concluded that the murder of Rodriguez-Zuniga’s cousin and her cousin’s son because they refused to pay the gangs did not compel any conclusion about the robber’s motivation in Rodriguez-Zuniga’s case. The panel further concluded that Rodriguez-Zuniga failed to establish a nexus to her family membership based on the robber’s threats to her son to get her to pay money. The panel wrote that to establish a nexus between her family membership and her harm, Rodriguez-Zuniga had to show that her family membership was a reason motivating the robber to target her. The panel explained that where the record indicates that the persecutor’s actual motivation for threatening a person is to extort money from a third person, the record does not compel finding that the persecutor threatened the target because of a protected characteristic such as family relation.
Even assuming for the sake of argument that the harm against Rodriguez-Zuniga’s son could support her own asylum claim, the panel held that Rodriguez-Zuniga failed to make the required showing of nexus. The panel explained that substantial evidence supported the agency’s finding that the robber threatened Rodriguez-Zuniga’s son only as an instrumental means to obtain money, and that the robber was not motivated intrinsically by the son’s familial relationship to Rodriguez-Zuniga. Rather, the robber targeted the son for the same reason she would target, for example, the petitioner’s life-long friend if the opportunity arose—merely because she thought Rodriguez-Zuniga cared about that person and thus the robber could use threats against that person as a means of obtaining money from Rodriguez-Zuniga. The panel explained that the extorted person’s motivation to give the money because they care for their family member does not transform the persecutor’s motivation from money to actual animus against a protected characteristic.
The panel also rejected Rodriguez-Zuniga’s “extortion- plus” claim under Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017). The panel explained that “extortion-plus” is simply the recognition that a persecutor can hold multiple motives for harming someone. However, unlike in Ayala, in this case the agency made no erroneous legal conclusion that extortion could not constitute persecution regardless of other motives. Instead, the agency expressly concluded there were no other such motives.
The panel held that the remainder of Rodriguez-Zuniga’s evidence from country conditions reports did not compel the conclusion that Rodriguez-Zuniga established an objectively reasonable fear of future persecution. While recognizing that there is no categorical rule that the failure to establish a nexus for past persecution forecloses nexus for future persecution, the panel did not read the IJ’s decision as necessarily applying such a categorical rule. The panel wrote that even if the IJ erred in applying some categorial rule, the BIA did not, and instead addressed them as two independent inquiries.
Finally, the panel concluded that by failing to adequately address the issue in her opening brief, Rodriguez-Zuniga had forfeited any argument that the agency incorrectly found she would not suffer torture with the consent or acquiescence of the government. Because a petitioner can state a claim for CAT relief only if she shows that the government would acquiesce in her torture, the panel concluded that Rodriguez-Zuniga’s failure to contest this point was fatal to her claim.
Dissenting, Judge Gilman disagreed with the majority’s conclusion that petitioners failed to establish nexus based on their family membership. Because Nelson’s would-be persecutors were interested in him only because of his relationship to his mother, in Judge Gilman’s view, he satisfied both the “a reason” nexus standard for withholding of removal and the “one central reason” nexus standard for asylum.
Judge Gilman also wrote that the majority’s nexus holding with respect to Rodriguez-Zuniga conflicted with this court’s decision in Ayala. Judge Gilman wrote that nowhere in Ayala does the court suggest that a showing of “animus” on the part of the persecutor is necessary. Judge Gilman also explained that, unlike in Ayala, in this case there was no ambiguity as to why Rodriguez-Zuniga was targeted. Rodriguez Zuniga’s potential persecutors knew her identity and the identities of her family members, and their representative targeted Rodriguez-Zuniga using her relationship to her son and because of her relationship to her husband. Additionally, Judge Gilman wrote that by eliminating a petitioner’s ability to establish a nexus to a protected ground where the persecutor’s actual motivation for threatening a person is to extort money from a third person, the majority departs from this court’s precedents that affirm the principle that people, including persecutors, often have mixed motives.
Judge Gilman wrote that the majority also failed to hold the agency accountable for several procedural missteps, including the agency’s failure to independently analyze the likelihood that petitioners would be subjected to future harm, failure to properly consider Rodriguez-Zuniga’s political opinion claim, failure to consider all evidence relevant to the possibility of future torture, including based on her gender, and the agency’s application of too narrow a government acquiescence standard. Judge Gilman also disagreed that petitioners had forfeited the government acquiescence issue.
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