NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA JACKELINNE PERDOMO No. 15-72412
EUCEDA,
Agency No. A088-512-668
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2019**
Pasadena, California
Before: RAWLINSON, IKUTA, and BADE, Circuit Judges.
Silvia Jackelinne Perdomo Euceda petitions for review of the decision of the
Board of Immigration Appeals upholding the Immigration Judge’s denial of her
motion to suppress evidence, and denial of her applications for asylum and
withholding of removal and protection under the Convention Against Torture. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo whether
Perdomo-Euceda established a prima facie case of an egregious constitutional
violation, review the agency’s factual findings for substantial evidence, Gonzalez-
Rivera v. INS, 22 F.3d 1441, 1444 (9th Cir. 1994), and deny the petition.
Perdomo-Euceda is a native and citizen of Honduras.1 In her application for
relief, Perdomo-Euceda claimed that she and her children were subjected to threats
of gang violence in Honduras because she witnessed gang members abduct her
cousin, who was later discovered dead. She claimed these threats continued for
approximately three years before she fled to the United States. Perdomo-Euceda
claimed that she fears harm from gangs if she returns to Honduras. The record
reflects that Perdomo-Euceda’s children remain in Honduras with their
grandmother, apparently unharmed.
At hearings before the IJ, Perdomo-Euceda challenged the admissibility of
Form I-213.2 She argued that Customs and Border Protection agents seized her
without reasonable suspicion or probable cause and therefore any statements
attributed to her in the I-213 should be suppressed. Perdomo-Euceda submitted an
1
The BIA’s decision erroneously states that Perdomo-Euceda is a native and
citizen of El Salvador.
2
Form I-213 is a “Record of Deportable Alien.” See Espinoza v. INS, 45 F.3d
308, 309 (9th Cir. 1995).
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affidavit stating that she was “doing nothing wrong,” and she was “taken into
custody.” At a hearing, she invoked her Fifth Amendment privilege against self-
incrimination and refused to answer any questions about the circumstances of her
arrest.
I.
Generally, the exclusionary rule does not apply in immigration proceedings,
see INS v. Lopez-Mendoza, 468 U.S. 1032, 1050–51 (1984), however, it can apply
“when the agency egregiously violates a petitioner’s Fourth Amendment rights.”
Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018), reh’g en banc denied, 919
F.3d 1193 (9th Cir. 2019). “A constitutional violation is not egregious unless
‘evidence is obtained by deliberate violations of the [F]ourth [A]mendment.’”
Martinez-Medina v. Holder, 673 F.3d 1029, 1034 (9th Cir. 2011) (alterations in
original) (quoting Gonzalez-Rivera, 22 F.3d at 1449).
Under Matter of Barcenas, Perdomo-Euceda had an initial burden to “come
forward with proof establishing a prima facie case” of a constitutional violation
that would require suppression of evidence. 19 I. & N. Dec. 609, 611 (B.I.A.
1988) (quoting Matter of Burgos, 15 I. & N. Dec. 278, 279 (B.I.A. 1975)). If a
petitioner makes this showing, the burden shifts to the government to justify the
way it obtained the evidence. See id. Perdomo-Euceda does not challenge the
procedure set forth in Matter of Barcenas, nor does she argue it was wrongly
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decided. Instead, Perdomo-Euceda argues her evidence establishes a prima facie
showing of an egregious constitutional violation. Her affidavit, however, did not
provide any information about her encounter with agents or her arrest. Her limited
hearing testimony also failed to provide any such information. Therefore,
Perdomo-Euceda’s evidence does not support her claim of an egregious
constitutional violation and the government was thus not required to justify how it
obtained its evidence. See Matter of Barcenas, 19 I. & N. at 611. The BIA
properly denied Perdomo-Euceda’s motion to suppress.
II.
Substantial evidence supports the BIA’s conclusion that Perdomo-Euceda
failed to provide a nexus between her fear of gang violence and any ground for
asylum. See Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001); Grava v. INS, 205
F.3d 1177, 1181–82 (9th Cir. 2000). To establish asylum eligibility, an applicant
must show that she has a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). We uphold the
BIA’s decision unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992); Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th
Cir. 2017) (en banc).
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Nothing in the record compels reversal of the BIA’s determination that
Perdomo-Euceda’s generalized fear of possible gang violence lacks a nexus to any
protected ground for asylum. On appeal, Perdomo-Euceda argues that she was
persecuted due to her membership in a particular social group, namely, the
members of the Euceda family who have knowledge of her cousin’s abduction.
Because Perdomo-Euceda failed to raise this argument to the BIA, it is not
exhausted and we lack jurisdiction to consider it. Barron v. Ashcroft, 358 F.3d
674, 677 (9th Cir. 2004). Thus, Perdomo-Euceda’s asylum claim and higher-
standard withholding of removal claim both fail. See Zehatye v. Gonzales, 453
F.3d 1182, 1190 (9th Cir. 2006).
III.
Relief under CAT is granted when a petitioner proves “that it is more likely
than not that he or she will be tortured in the country of removal.” Parada v.
Sessions, 902 F.3d 901, 914 (9th Cir. 2018); see also 8 U.S.C. § 1252(b)(4)(B).
The torture must be “inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
8 C.F.R. § 1208.18(a)(1). Substantial evidence supports the BIA’s determination
that Perdomo-Euceda failed to show she would be subjected to torture by public
officials, or with their consent or acquiescence, if she returned to Honduras.
Petition DENIED.
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