NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELICIANA PABLO-PABLO; JAMES No. 19-71531
ARNOLDO PABLO-PABLO,
Agency Nos. A216-386-675
Petitioners, A216-386-676
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2020**
San Francisco, California
Before: SILER,*** TALLMAN, and HUNSAKER, Circuit Judges.
Feliciana Pablo-Pablo (“Pablo”) and her minor son, J.A.P.P., petition for
review of an order of the Board of Immigration Appeals (“BIA”) and move for
*
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).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
remand to the Executive Office of Immigration Review (“EOIR”). 1 Our jurisdiction
is governed by 8 U.S.C. § 1252. We deny the petition for review because the BIA’s
decision denying asylum is supported by substantial evidence. 2 See Lopez-Cardona
v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011) (explaining the standard of review).
We also deny the motion to remand based on Pereira v. Sessions, 138 S. Ct. 2105
(2018), because Pablo failed to exhaust administrative remedies by neglecting to
raise this argument in her appeal to the BIA.
Pablo claims that she is entitled to asylum because she has demonstrated that
she cannot return to Guatemala “because of persecution or a well-founded fear of
persecution on account of . . . membership in [] particular social group[s].” See 8
U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A).
To establish past persecution, Pablo must show “(1) an incident, or incidents,
that rise to the level of persecution; (2) that is on account of one of the statutorily-
protected grounds; and (3) is committed by the government or forces the government
1
Pablo’s son’s asylum claim is derivative of his mother’s. Thus, we refer only to
Pablo’s application throughout the disposition.
2
Nexus issues are generally reviewed for substantial evidence, see Parussimova v.
Mukasey, 555 F.3d 734, 738-39 (9th Cir. 2009), but this court has also suggested
that nexus issues are questions of law, reviewed de novo, when the petitioner is
deemed credible, see Baghdasaryan v. Holder, 592 F.3d 1018, 1022 n.4 (9th Cir.
2010). Here, Pablo was found credible as to only one of her two asserted particular
social groups, but the parties have not raised any issue regarding the applicable
standard of review, and we do not address it.
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is either unable or unwilling to control.” Doe v. Holder, 736 F.3d 871, 877-78 (9th
Cir. 2013) (internal citations and quotations omitted).
Only the second element is disputed here. Pablo claims that she was
persecuted on account of her membership in two particular social groups:
indigenous Guatemalan women and immediate family members of Antonio (Pablo’s
former partner). Even so, the BIA’s conclusion that Pablo failed to show past
persecution on account of her membership in these social groups is supported by
substantial evidence.
First, the BIA reasonably concluded that abuse by Pablo’s ex-husband,
Marcelino, was “meant to humiliate and control [Pablo] as an individual,” not
because she is an indigenous Guatemalan woman. The BIA acknowledged that
“[t]he evidence reflects that Marcelino (and his mother) criticized the respondent for
being ‘ugly’ and ‘dark’ [skinned].” Even so, the BIA observed that “Marcelino and
his parents were also indigenous Mam speakers . . . , and there is nothing in the
record to indicate that Marcelino mistreated other indigenous Guatemalan women
or harbored hostility toward them as a group.” Moreover, the record indicates that
Marcelino abused Pablo to control her as a person based on jealousy and misogyny,
all unrelated to her indigenous heritage. As a result, while Marcelino’s domestic
harm to Pablo was disturbing and cruel, we cannot say that any reasonable
adjudicator would be compelled to conclude that Pablo suffered harm on account of
3 19-71531
her indigenous Guatemalan ancestry. Doe, 736 F.3d at 877 (holding reversal is
warranted under substantial evidence review only if the evidence compels a contrary
result).
Second, the BIA’s conclusion that Pablo was not attacked on account of her
membership as an immediate family member of Antonio is similarly supported by
substantial evidence. Pablo contends that she was attacked and extorted because of
her romantic relationship with a man named Antonio, who owed unidentified men
100,000 quetzals. But, as the BIA noted, the demand of 100,000 quetzals by Pablo’s
attackers, while identical to the debt owed by Antonio, is a round number that could
easily have been chosen at random as part of an indiscriminate extortion attempt.
Further, the alleged attack and extortion attempt occurred approximately two-and-a-
half years after Antonio had left Guatemala, with no evidence of violence or
demands before the 2017 attack. Finally, Pablo acknowledged that her attackers
spoke a different dialect of Mam than that spoken in Todos Santos, the area where
Antonio’s creditors were located. Taken together, this evidence does not compel the
conclusion that Pablo was attacked because of her relationship with Antonio.
In sum, the BIA’s finding that Pablo failed to establish a nexus between the
harm she suffered and her purported social groups is supported by substantial
evidence. The record supports a reasonable conclusion that Pablo suffered severe
domestic violence and was the victim of an indiscriminate attack and extortion
4 19-71531
attempt. While tragic, the BIA permissibly concluded that these events occurred
independent of Pablo’s membership as an indigenous Guatemalan woman and as an
immediate family member of Antonio.
As a final matter, we do not reach the merits of Pablo’s motion to remand to
the EOIR for lack of immigration court jurisdiction based on Pereira v. Sessions,
138 S. Ct. 2105 (2018), because she failed to exhaust the jurisdictional claim in her
brief to the BIA. See 8 U.S.C. § 1252(d)(1); see also Barron v. Ashcroft, 358 F.3d
674, 677 (9th Cir. 2004).3
The petition for review and motion to remand are DENIED.4
3
Even if it had been exhausted, Pablo’s claim would fail in light of Fermin v. Barr,
958 F.3d 887, 894-95 (9th Cir. 2020), and Karingithi v. Whitaker, 913 F.3d 1158
(9th Cir. 2019).
4
Pablo’s motion to stay proceedings is denied as moot.
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