NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA ERIKA RAMON-PERALTA & No. 19-72616
XIOMARA CLAVEL-RAMON,
Agency Nos. A202-097-250
Petitioners, A202-097-251
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2021*
San Francisco, California
Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit
Judges.
Alma Erika Ramon-Peralta and Xiomara Clavel-Ramon (“Petitioners”)
petition for review of the Board of Immigration Appeals’ (“BIA”) order vacating an
*
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).
immigration judge’s (“IJ”) decision granting withholding of removal. We deny the
petition.
1. The BIA did not err in concluding that the particular social group
(“PSG”) of “the family of a threatened individual in Mexico” lacked social
distinction.1 See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)
(requiring alleged PSG be “socially distinct within the society in question”); see also
Rios v. Lynch, 807 F.3d 1123, 1124 (9th Cir. 2015).
“[T]he family remains the quintessential particular social group.” Rios, 807
F.3d at 1128. However, “some attenuated family links will not per se suffice” for a
PSG. Jie Lin v. Ashcroft, 377 F.3d 1014, 1028 (9th Cir. 2004). A petitioner must
still show the alleged family relationship “presents the kind of ‘kinship ties’ that
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Petitioners contend the BIA erred in not characterizing their PSG as “[f]amily of
Raymundo Cabrera-Solis.” But Petitioners expressly identified “the family of a
threatened individual in Mexico” as their PSG in their pre-hearing documents filed
with the IJ, which is what the IJ relied on in conducting its analysis. Petitioners
may have unartfully asserted the PSG they now focus on in their post-hearing
briefing submitted to the IJ, but it is not clear they did so in manner sufficient to
satisfy administrative exhaustion requirements. See Matter of W-Y-C- & H-O-B-,
27 I. & N. Dec. 189, 191–92 (BIA 2018). Nevertheless, this is a distinction
without a difference. The BIA understood Petitioners’ PSG as referencing their
relationship to “specifically the father of [Alma’s] oldest daughter,” i.e. Raymundo
Cabrera-Solis, and petitioners fail to explain how identifying their PSG as “family
of Raymundo Cabrera-Solis instead of as “the family of a threatened individual in
Mexico” would change the BIA’s analysis regarding whether their PSG was
socially distinct.
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constitute a ‘particular social group.’” See Gonzalez v. Thomas, 547 U.S. 183, 186
(2006); see also Rios, 807 F.3d at 1128.
Here, Petitioners’ evidence of alleged family ties is insufficient. First, they
contend that that the drug trafficker’s seeking payment of Raymundo’s debts from
Ms. Ramon-Peralta shows that the persecutor perceives them as a family unit.
However, a PSG’s distinctiveness is based on how society, not a persecutor,
perceives the group. Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020).
Second, they contend that Mexican society knew Raymundo was the father of one
of Ms. Ramon-Peralta’s daughters because he was listed on her birth certificate.
However, Marylin—the child shared by Ms. Ramon-Peralta and Raymundo—was
born in the United States and not Mexico. There is no corroborative or objective
evidence that people in Mexican society saw Marylin’s birth certificate or knew of
Ms. Ramon-Peralta’s connection to Raymundo. Nor is there any evidence that
society perceived Xiomara, a child of Ms. Ramon-Peralta but not Raymundo, as part
of a distinct family unit with Raymundo. Petitioners failed to meet their burden of
establishing a socially distinct PSG.
2. Petitioners also argue the BIA violated their due process rights by not
allowing them to file a supplemental brief when it permitted Respondent to file its
appeal brief late. They contend that these decisions unfairly reduced their time to
reply to Respondent’s brief. We only reverse the BIA “on due process grounds if
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(1) the proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006)
(internal quotation marks and citations omitted). We review alleged due process
violations in deportation proceedings de novo. Id. at 620.
The BIA did not err in exercising its discretion to accept Respondent’s late-
filed brief accompanied by a motion. See 8 C.F.R. § 1003.3(c)(1). The BIA has
“the discretion to consider a late-filed brief” that “set[s] forth in detail the reasons
for the untimeliness.” BIA Practice Manual, ch. 4.7(d). The BIA was satisfied with
knowing the original trial attorney who was assigned the case left the Department of
Homeland Security and as a result the deadline was missed.
Nor did the BIA err in denying Petitioners’ motion for supplemental briefing.
Petitioners’ motion should have been submitted alongside a proposed supplemental
brief. BIA Practice Manual, ch. 4.6(g)(ii). However, no supplemental brief was
presented to the BIA.
Petitioners cannot show “prejudice” or that “the proceeding was so
fundamentally unfair” so as to prevent Petitioners from “reasonably presenting” their
case when the BIA properly exercised its discretion to allow Respondent’s late-filed
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brief and the Petitioner’s motion for supplemental briefing was deficient. Ibarra-
Flores, 439 F.3d at 620–21 (internal quotation marks and citation omitted).
DENIED.
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