Opinion
20-71164
10-21-2022
DIANA KARINA GARCIA ALTAMIRANO; EDEN PRISCILIANO DIAZ GARCIA, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A208-196-405, A208-196-406
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Diana Karina Garcia-Altamirano, a citizen of Mexico, seeks review of the Board of Immigration Appeals ("BIA") decision affirming the Immigration Judge's ("IJ") denial of her claims for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). We deny the petition.
Petitioner's claim is based on an incident that occurred at her long-term boyfriend's mother's and sister's store, in which police pursued and shot a suspect within the store. Her boyfriend's mother and father were later approached by the suspect's sister about filing a complaint against the police and then allegedly received threats by text from an unknown number warning them to withdraw the complaint.
Although the IJ found Petitioner was not credible, we need not address this issue because the BIA concluded that, even assuming she were credible, she did not qualify for asylum or withholding. Substantial evidence supports the BIA's decision. Petitioner was not a witness to the shooting and was never personally threatened or otherwise involved in the incident. She suffered no past persecution and had no objectively reasonable basis for fear of future harm on account of a protected ground. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001) ("The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear or persecution."). Substantial evidence also supports the BIA's rejection of her attempts to claim fear based on "familial association" because there was no evidence that she shared a "common immutable characteristic" or was perceived to be part of a "socially distinct" unit within the society in question (or, for that matter, that the threats even extended to other members of her boyfriend's family unit). Villegas Sanchez v. Garland, 990 F.3d 1173, 1180-81 (9th Cir. 2021). Moreover, Petitioner's due process rights were not violated when the IJ sustained an evidentiary objection and said that Petitioner's testimony was not believable. Finally, the evidence does not compel a conclusion that it is more likely than not that Petitioner would be tortured if returned to Mexico, and thus the BIA properly denied her claim under CAT. 8 U.S.C. §1208.16 (c)(2).
Our review is limited to the grounds on which the Board relied. Olivas-Motta v. Holder, 746 F.3d 907, 917 (9th Cir. 2013).
In rejecting this argument, the BIA relied on In re of L-E-A- ("L-E-A-II"), 27 I&N Dec. 581 (U.S. Att'y Gen. 2019), which has since been vacated. In re L-E-A- ("L-E-A-III"), 28 I. & N. Dec. 304, 305 (U.S. Att'y Gen. 2021). L-E-A-III "return[ed] the immigration system to the . . . state of affairs" that existed prior to L-E-A-II, which includes our precedent in Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (recognizing that a family is "the quintessential particular social group"). Petitioner's claims clearly fail even under Rios because she merely claims to "consider" herself to be a member of her boyfriend's family. Petitioner cites no preL-E-A-II case law in which we have entertained such a theory. Moreover, Petitioner's argument merely puts the question whether Mexican society at large would perceive a long-term girlfriend to be a part of her boyfriend's "family," see Villegas Sanchez, 990 F.3d at 1181 ("The particular social group analysis does not occur in isolation, but rather in the context of the society out of which the claim for asylum arises." (citation omitted)), a question regarding which Petitioner submitted no evidence. A remand to the BIA for consideration of L-E-A-III is therefore unnecessary.
PETITION DENIED.
[*] 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).