FILED
NOT FOR PUBLICATION
JUL 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERLIN PAZ, AKA Nelsi Banagas, AKA No. 17-72387
Serlin Jonelyn Paz, AKA Serlin Ramos
Paz, AKA Serlin Jonelin Paz Sosa, Agency No. A072-524-619
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2020**
Before: GRABER, TALLMAN, and CLIFTON, Circuit Judges.
Petitioner Serlin Paz seeks review of the Board of Immigration Appeals’
("BIA") final order affirming the immigration judge’s ("IJ") denial of her requests
*
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).
for withholding of removal and relief under the Convention Against Torture
("CAT"). We deny the petition.
1. Substantial evidence supports the BIA’s determination that the IJ did not
clearly err in concluding that Petitioner is not eligible for withholding of removal
on account of her family membership. See Shrestha v. Holder, 590 F.3d 1034,
1039 (9th Cir. 2010) (stating standard). Petitioner did not present any evidence
that she was raped because of her family ties. And Petitioner testified that her
brother was killed because of his gang affiliation, not because of his family.
Although Petitioner’s father and sister were threatened by gang members and told
to leave the area where they lived, they were not harmed and were able to relocate
safely. Substantial evidence thus supports the conclusion that Petitioner and her
family did not suffer past persecution on account of their family membership. See
Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) ("Threats standing
alone . . . constitute past persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual ‘suffering or
harm.’"). Petitioner also failed to establish that it is more likely than not that she
would suffer future persecution if she returned to Honduras. See Hakeem v. INS,
273 F.3d 812, 816 (9th Cir. 2001) (“An applicant’s claim of persecution upon
return is weakened, even undercut, when similarly-situated family members
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continue to live in the country without incident, . . . or when the applicant has
returned to the country without incident.”) (citations omitted), superseded by
statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.
2007).
2. Petitioner waived review of the cognizability of her proposed social
group of "women in Honduras who were raped with no state action." Petitioner
did not challenge on appeal, either to the BIA or to this court, the IJ’s
determination that her proposed social group is not cognizable. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding that arguments not raised in a
party’s opening brief generally are waived).
3. Finally, substantial evidence supports the BIA’s determination that
Petitioner did not demonstrate eligibility for CAT relief. See Shrestha, 590 F.3d at
1048 (stating standard of review and CAT standard). The evidence does not
compel the conclusion that it is more likely than not that Petitioner would be
tortured if she returned to Honduras. Petitioner has not had direct contact with her
rapist since 1993 (except for a phone call in 2009 that she suspected was from
him), and he is currently incarcerated. Even if Petitioner could show that it is more
likely than not that her rapist would attack her, she did not establish that any attack
would be "with the consent or acquiescence of a public official." 8 C.F.R.
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§ 1208.18(a)(1). Honduran authorities arrested and convicted Petitioner’s rapist
for rape, and he is currently serving a 30-year sentence.
The record also supports the conclusion that Petitioner could safely relocate
to another part of Honduras. Id. § 1208.16(c)(3)(ii); see Maldonado v. Lynch, 786
F.3d 1155, 1163–64 (9th Cir. 2015) (en banc) (noting that a petitioner’s ability to
safely relocate is relevant to the possibility of future torture). Petitioner’s family
relocated to another part of Honduras after Petitioner’s brother was killed, and they
have lived there safely for the past fifteen years.
PETITION DENIED.
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