Unreported / Non-Citable
Background
Rosa Magali Rubio Zamora and her minor child, natives and citizens of Mexico, petitioned for review of a Board of Immigration Appeals (BIA) decision dismissing their appeal of an Immigration Judge's (IJ) denial of asylum. The petitioners do not challenge the denial of withholding of removal or protection under the Convention Against Torture, waiving those claims. The Ninth Circuit has jurisdiction under 8 U.S.C. § 1252 and reviews the agency's denial of asylum for substantial evidence, upholding findings unless any reasonable adjudicator would be compelled to conclude otherwise.
Rubio Zamora testified that in 2018 unknown burglars broke into her home and stole valuables. Following the burglary, unknown men attempted to extort money from her but left when she refused to pay. After her refusal, she and her son were followed by unknown men who made no contact and did not speak to them. Petitioners argued these 2018 events were connected to a 2014 incident in which a drug cartel leader threatened Rubio Zamora and her colleagues at a teacher's meeting. The cartel leader was arrested in 2015, and four years passed without incident between the 2014 threats and the 2018 events.
The Court’s Holding
The Ninth Circuit held that substantial evidence supports the agency's determination that the harm petitioners suffered lacks the requisite nexus to a protected ground. The court affirmed that a petitioner's desire to be free from harassment by criminals motivated by theft or random violence bears no nexus to a protected ground, citing Zetino v. Holder. The agency reasonably concluded the 2014 incident had no nexus to the 2018 events given the cartel leader's 2015 arrest and the four-year gap without incident.
The court further held that the IJ and BIA did not err in considering petitioners' proposed particular social group (PSG) of "former Mexican government employees in favor of the government." To the extent petitioners raised a new PSG of "former Mexican government teachers in favor of the government" for the first time on appeal, the issue was not exhausted under 8 U.S.C. § 1252(d)(1). Even if exhausted, petitioners bore the burden to clearly delineate the PSG, and the BIA correctly declined to consider a new PSG raised for the first time on appeal, consistent with Honcharov v. Barr and Matter of W-Y-C- & H-O-B-. The petition for review was denied, the opposed motion to stay removal was denied, and the temporary stay of removal was lifted effective immediately.
Key Takeaways
- Substantial evidence supported the agency's finding that criminal acts motivated by theft or extortion lack the required nexus to a protected ground for asylum eligibility.
- A four-year gap between a prior threat by a cartel leader (who was later arrested) and subsequent criminal acts broke any nexus between the earlier incident and later harm.
- Petitioners must exhaust administrative remedies by raising all particular social group arguments before the BIA; new PSGs raised for the first time on appeal are not considered.
- The burden rests on the applicant to clearly delineate a particular social group before the IJ; the agency is not required to construct PSGs sua sponte.
- The BIA does not err in declining to consider a particular social group newly raised on appeal.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's strict application of the nexus requirement in asylum cases, emphasizing that generalized criminal violence and economically motivated harm do not establish persecution on account of a protected ground. The decision also underscores the importance of administrative exhaustion and precise pleading of particular social groups in immigration proceedings, affirming that applicants cannot raise new PSG formulations for the first time on appeal to the BIA or the federal courts.