Unreported / Non-Citable
Background
Maria Filomena Martinez Cartagena and her minor child, natives and citizens of El Salvador, petitioned the Ninth Circuit for review of a Board of Immigration Appeals decision dismissing their appeal from an Immigration Judge's order. The Immigration Judge had denied Cartagena's applications for asylum, withholding of removal, and protection under the Convention Against Torture. The child was a derivative beneficiary of the asylum application and filed no separate applications for withholding or CAT protection. The Board adopted the Immigration Judge's decision under Matter of Burbano and added its own reasoning, so the court reviewed both decisions.
Cartagena's theory was that she suffered past harm and feared future harm because of membership in a proposed particular social group, 'Salvadoran women who have suffered threats and extortion by the gangs.' The harm at issue was gang threats directed at her partner. She testified that written notes her partner received threatened harm only if the partner did not pay the requested money. The agency found no nexus between that harm, or any feared future harm, and the proposed group. A panel of Circuit Judges R. Nelson and H.A. Thomas and District Judge Araceli Martínez-Olguín, sitting by designation, decided the case without oral argument in an unpublished memorandum.
The Court’s Holding
The court denied the petition. It reviewed legal conclusions de novo and factual findings for substantial evidence, reversing only if the evidence compels a contrary conclusion. Cartagena argued that de novo review of the agency's conclusions was required because the Board issued a streamlined decision. The panel rejected that premise, explaining that a Board affirmance citing Matter of Burbano differs from a streamlined affirmance.
On asylum and withholding of removal, the panel held that Cartagena had not pointed to record evidence compelling reversal of the finding that she failed to establish a nexus between any past harm or feared future harm and her proposed social group. Relying on Zetino v. Holder, it noted that a desire to be free from harassment by criminals motivated by theft or random violence bears no nexus to a protected ground. The record supported the conclusion that the gang members threatened her partner solely to obtain money. The notes threatened harm only for nonpayment, and on appeal Cartagena conceded that the threats were made because the gang members were 'demanding money.' The panel resolved these claims on nexus and did not address whether the proposed group is legally cognizable.
The court also held that Cartagena did not meaningfully dispute the agency's CAT determination and therefore forfeited the issue, citing Hernandez v. Garland for the rule that arguments not made specifically and distinctly in an opening brief are forfeited. In a footnote, the court denied her motion to stay removal and lifted the temporary stay of removal.
Key Takeaways
- Threats motivated by a demand for money can defeat the nexus requirement for asylum and withholding even when the applicant frames the claim through a particular social group.
- Cartagena's concession on appeal that the gang members were 'demanding money' reinforced the agency's finding, showing how statements in briefing can narrow the record.
- A CAT claim that is not argued specifically and distinctly in the opening brief is forfeited, even if the petition otherwise challenges the agency's decision.
- A Board decision that cites Matter of Burbano and adds its own reasoning is not a streamlined affirmance, so the court reviews both the Immigration Judge's and the Board's decisions under the usual standards.
- Denial of the petition ended the temporary stay of removal, because the court denied the stay motion and lifted the temporary stay.
Why It Matters
This is an unpublished memorandum disposition that is not precedent except as provided by Ninth Circuit Rule 36-3, so it does not bind later panels. Its value is illustrative. It shows how the court applies Zetino's principle that criminal extortion motives do not, without more, supply a protected-ground nexus, and how deferential substantial-evidence review makes such findings hard to overturn.
The ruling is also a reminder about briefing. The CAT claim was not reached on the merits because it was not meaningfully argued, and the court did not decide whether the proposed social group is cognizable. Those questions remain open, and the decision should not be read as resolving them. The memorandum describes no further proceedings beyond the denial of the petition and the lifting of the temporary stay.