RENDEROS NATAREN v. BARR (2020)

MEMORANDUM **

Petitioner Kenia Lissette Renderos-Nataren and her minor son, natives and citizens of El Salvador, timely petition for review of a Board of Immigration Appeals’ (“BIA”) order affirming the denial of their claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review the BIA's decision, “except to the extent that the [immigration judge's] opinion is expressly adopted,” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)), and review “the BIA's determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential ‘substantial evidence’ standard,” Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

Petitioners fail to challenge the BIA's determination that they have not suffered past harm that rises to the level of persecution, and therefore waive that argument. See Hui Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019) (“issues not raised in the opening brief are deemed waived” (citing Martinez-Serrano v. INS., 94 F.3d 1256, 1259–60 (9th Cir. 1996))). To be eligible for asylum, Petitioners had to demonstrate a “well-founded fear of future persecution” on account of their membership in a particular social group. 8 U.S.C. § 1101(a)(42). To be cognizable, a particular social group must be “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (internal quotation marks omitted).

The BIA correctly determined that the proposed social groups—“El Salvadoran women who do not have protection from violence” and “El Salvadoran women business owners”—are not cognizable. Because the “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground,” Zetino, 622 F.3d at 1016, the first proposed social group is not cognizable. Because Petitioner failed to challenge the BIA's finding that she is no longer a business owner, and therefore not a member of that proposed group, she waived the issue. See Hui Ran Mu, 936 F.3d at 936 (“issues not raised in the opening brief are deemed waived” (citing Martinez-Serrano, 94 F.3d at 1259–60)). Substantial evidence also supports the BIA's determination that Petitioner's son failed to establish a nexus between the harm that he fears in El Salvador and membership in his family.

The standard “for withholding of removal is more stringent than the well-founded fear standard governing asylum.” Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001). Petitioners’ ineligibility for asylum thus forecloses their arguments regarding withholding of removal.

Finally, Petitioners fail to challenge the BIA's determination that, because the record does not establish that it is “more likely than not” that Petitioners will be tortured if returned to El Salvador, they are ineligible for CAT protection. 8 C.F.R. § 1208.16(c)(2). Accordingly, their CAT claim is waived. See Hui Ran Mu, 936 F.3d at 936 (“issues not raised in the opening brief are deemed waived” (citing Martinez-Serrano, 94 F.3d at 1259–60)).

PETITION DENIED.