OUWENEEL v. WILKINSON (2021)

MEMORANDUM **

Hermine Ouweneel and her daughters Johanna Baksteen and Promise Baksteen, natives and citizens of the Netherlands, petition for review of a Board of Immigration Appeals order dismissing their appeal from an immigration judge's (“IJ”) decision denying their application for asylum.¹ We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing legal questions de novo and the agency's factual findings for substantial evidence, see Diaz-Jimenez v. Sessions, 902 F.3d 955, 958 (9th Cir. 2018), we deny the petition in part and dismiss it in part.

1. To be eligible for asylum based on religious persecution, Ouweneel must show that the source of the claimed persecution is the government or “forces that the government is unwilling or unable to control.” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018) (quoting Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007)). Substantial evidence supports the agency's finding that Ouweneel did not meet this burden.

Ouweneel claimed that her family, as prominent members of the Brethren, a conservative religious sect, could influence the government of the Netherlands to prevent her from exercising her legal rights. But despite the Brethren's strong objections to divorce and her family's attempt to separate her from her daughters, Ouweneel was able to obtain a court order terminating her marriage and awarding her full custody of the children. Ouweneel's ex-husband complied with the custody order.

2. Ouweneel contends that the IJ denied her due process by not advising her that she was eligible for voluntary departure. However, we lack jurisdiction to consider a claim of procedural error that Ouweneel failed to exhaust before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Therefore, we dismiss this claim.

PETITION DENIED in part and DISMISSED in part.

FOOTNOTES

1.   Because Ouweneel's daughters’ asylum applications are derivative of hers, the analysis as to her petition also applies to theirs.