Jeidy Esquivel-Rubinos v. Jefferson Sessions

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JEIDY PATRICIA ESQUIVEL- No. 13-72600
RUBINOS,
Agency No. 099-581-763
Petitioner,

v. MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 16, 2017**
Seattle, Washington

Before: BYBEE and M. SMITH, Circuit Judges, and DORSEY,*** District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
Jeidy Patricia Esquivel-Rubinos petitions for review of the Board of

Immigration Appeal’s (BIA) denial of her requests for asylum, withholding of

removal, relief under the Convention Against Torture (CAT), and cancellation of

removal. We review legal questions de novo and the BIA’s factual findings for

substantial evidence. Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir.

2015). Because the BIA’s decisions were supported by substantial evidence, we

deny the petition.

A. Substantial evidence supports the BIA’s denial of asylum.

A petitioner must file her application for asylum within one year of arriving

in the United States. See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). An

application filed after the one-year deadline may be considered only if the

petitioner demonstrates “either the existence of changed circumstances [that]

materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the period.” 8

U.S.C. § 1158(a)(2)(D).

The BIA found that Esquivel-Rubinos was barred from asylum because she

filed her application 14 years after arriving and did not allege eligibility on appeal.

Esquivel-Rubinos does not allege changed circumstances that materially affect her

eligibility for asylum. She argues that she was unaware of the filing deadline, but

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advances no precedent or regulation that would allow us to consider ignorance of

the law as an extraordinary circumstance. The BIA’s asylum denial was supported

by substantial evidence.

B. Substantial evidence supports the BIA’s denial of Esquivel-Rubinos’s
withholding-of-removal application and CAT claim.

An applicant is entitled to withholding of removal if she demonstrates that it

is “more likely than not” that she will be persecuted if she returns to the proposed

country of removal. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999)

(quotation marks omitted) (citing 8 C.F.R. § 208.16(b)(1)). To qualify for CAT

relief, the petitioner must show that she “‘is more likely than not to be tortured in

the country of removal.’” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011)

(quoting 8 C.F.R. § 1208.16(c)(4)).

The BIA found that Esquivel-Rubinos failed to establish that she suffered

past persecution in Guatemala because she failed to show a nexus between her

father’s death and one of the protected grounds enumerated in section 241(b)(3)(A)

of the Immigration and Naturalization Act, 8 U.S.C. §

1231(b)(3)(A). Police determined that her father’s death was an accident, and

Esquivel-Rubinos failed to provide any evidence suggesting otherwise.

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The BIA also found that Esquivel-Rubinos failed to show a clear probability

of future persecution or torture and that she failed to identify a specific social

group of which she is a member. Though it appears that she claims “women in

Guatemala” as her social group in both her application for asylum and appeal to the

BIA, she did not establish any risk of future harm because of her membership in

this group. Esquivel-Rubinos testified that neither she nor her mother or two

sisters have been threatened or harmed in Guatemala, she did not “have in mind

right now anyone” who might want to harm her, and her fear of violence in

Guatemala stems from stories she hears. An “applicant’s claim of persecution

upon return is weakened, even undercut, when similarly-situated family members

continue to live in the country without incident.” Hakeem v. INS, 273 F.3d 812,

816 (9th Cir. 2001) (superseded by statute on other grounds). The BIA’s denial of

Esquivel-Rubinos’s withholding-of-removal and CAT claims was supported by

substantial evidence.

C. This court lacks jurisdiction to review the BIA’s rejection of Esquivel-
Rubinos’s cancellation-of-removal claim.

To qualify for cancellation of removal, a nonpermanent resident alien must

demonstrate that removal would result in exceptional hardship to the alien’s

spouse, parent, or child who is a citizen of the United States or an alien lawfully

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admitted for permanent residence. 8 U.S.C. § 1229b(b)(1). Although this court

lacks jurisdiction to review “exceptional and extremely unusual hardship”

determinations, Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003), it

retains jurisdiction to consider constitutional questions, such as due process

challenges, Reyes-Melendez v. INS, 342 F.3d 1001, 1008 (9th Cir. 2003), which are

reviewed de novo, Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011) (as amended).

“[A]n alien attempting to establish that the Board violated h[er] right to due

process by failing to consider relevant evidence must overcome the presumption

that it did review the evidence.” Larita-Martinez v. INS, 220 F.3d 1092, 1095–96

(9th Cir. 2000). Because the petitioner “bears the burden of raising a colorable

constitutional claim or question of law . . . [the court] must presume that [it] lack[s]

jurisdiction absent such a showing.” Mendez-Castro v. Mukasey, 552 F.3d 975,

978 (9th Cir. 2009).

Esquivel-Rubinos argues that the BIA violated her due process rights by

failing to consider the hardship on her three United States-citizen children

stemming from: (1) her lack of alternative means of immigrating to the United

States for at least ten years or until she has a qualifying relative for a waiver; (2)

the uncertainty of her husband’s immigration situation; and (3) the aggregate result

of these hardships combined with those created by separation from family and

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diminished financial support and educational opportunities if she returns to

Guatemala with her children.

The BIA found that the IJ “properly weighed the totality of the factors” in

making his hardship determination, including hardships resulting from economic,

emotional, and educational factors, and family separation if the father does not go

to Guatemala. The BIA also considered the testimony of Esquivel-Rubinos’s

husband about the uncertainty of his own immigration situation and his stated

inability to support his family at current economic levels if the children move back

to Guatemala with Esquivel-Rubinos. And it noted in the order that if Esquivel-

Rubinos “fails to voluntarily depart the United States within the time period

specified . . . [she] shall be ineligible for a period of 10 years for any further relief

under . . . the Act.”

Esquivel-Rubinos did not meet her burden of establishing that the BIA

violated her right to due process by failing to consider relevant evidence. This

court thus lacks jurisdiction to review the BIA’s dismissal of Esquivel-Rubinos’s

appeal from the denial of her cancellation-of-removal claim.

The petition for review is DENIED.