Mirna De Leon-Garcia v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIRNA ELIZABETH DE LEON-GARCIA; No. 21-70836 et al., 22-448 Petitioners, Agency Nos. A208-759-013 A208-759-011 v. A208-759-012 MERRICK B. GARLAND, Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 6, 2023** Pasadena, California Before: WALLACE and OWENS, Circuit Judges, and FITZWATER,*** District Judge. Mirna Elizabeth De Leon-Garcia (De Leon), a native and citizen of * 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. Guatemala, and her minor children (collectively, Petitioners) petition for review of the Board of Immigration Appeals’ (BIA) dismissal of their appeals from the immigration judge’s (IJ’s) denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioners also petition for review of the BIA’s denial of their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s legal conclusions de novo and the BIA’s factual findings for substantial evidence, and review the BIA’s denial of a motion to reopen for abuse of discretion. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022); Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir. 1985). We deny the petitions. Petitioners argue that the BIA erred because it should have conducted a meaningful analysis of the cognizability of their proposed social group—spouses and children of individuals living in the United States who send money back to Guatemala to support their family and are targeted by gang members for extortion in exchange for safety—before it could make a determination on whether Petitioners demonstrated a nexus between membership in that group and future or past persecution, and thereby deny their applications. Petitioners argue that, because they planned to challenge the IJ’s determination on the cognizability of the proposed social group before challenging any nexus determination, they did not waive any arguments challenging the nexus finding. 2 The IJ did not err in denying Petitioners’ applications on the basis of a lack of a demonstrated nexus. The lack of a nexus between the harm that an applicant suffered and a protected ground is dispositive of asylum and withholding of removal applications. Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016). Here, the IJ considered Petitioners’ proposed social group, and determined that, even if it is cognizable, Petitioners had still not demonstrated a nexus between that group and the harm they claim. The IJ was not required to make a definitive decision about the social group prior to arriving at this conclusion. Petitioners did not sufficiently raise the nexus argument before the BIA, which upheld …

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