Carla Martinez-Hernandez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS CARLA LISSETH MARTINEZ- No. 20-71680 HERNANDEZ, Agency No. A209-791-472 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 8, 2022** Pasadena, California Before: KELLY,*** M. SMITH, and COLLINS, Circuit Judges. Petitioner Carla Martinez-Hernandez, a citizen of El Salvador, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) affirming an order of an Immigration Judge (“IJ”) denying her claims for asylum, withholding of removal, and relief under the Convention Against Torture. We review the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Court of *** Appeals for the Tenth Circuit, sitting by designation. agency’s legal conclusions de novo and its factual findings for substantial evidence. See Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). Under the latter standard, the “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We have jurisdiction under § 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252, and § 2242(d) of the Foreign Affairs Reform and Restructuring Act, 8 U.S.C. § 1231 note. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690–91 (2020). We deny the petition. 1. Martinez-Hernandez has failed to establish that the agency erred in rejecting her requests for asylum and withholding of removal. a. The agency properly concluded that Martinez-Hernandez had failed to establish past persecution on account of a protected ground (here, her membership in a “particular social group”). See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i), 1231(b)(3)(A). Martinez-Hernandez testified that she was threatened by a group of 18th Street gang members in February 2016 and that, three months later, a member of the same gang pushed her against a wall and hit her in the chest before letting her leave. On both occasions, the gang members expressed anger that she was present in 18th Street territory (where she attended school) even though she lived in a neighborhood controlled by the rival MS-13 gang. As Martinez-Hernandez 2 explained, the 18th Street gang members were concerned that she could be “taking information” about their gang back to MS-13 gang members. Given Martinez- Hernandez’s own testimony as to the gang’s motivation on these two occasions, we cannot say that the record compels the conclusion that any harms that she experienced during these incidents were “inflicted to punish” her for her membership in a proposed social group of “females who are in defiance of gang authority.” See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to …

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