Elvira Gutierrez Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVIRA GUTIERREZ HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1182
Agency No. A205-920-773
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 09, 2023**
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN,***
Judge.
Elvira Gutierrez Hernandez, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) upholding the
denial by the Immigration Judge (“IJ”) of her application for withholding of
* 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 Gary S. Katzmann, Judge for the United States
Court of International Trade, sitting by designation.
FILED
MAR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal, protection under the Convention Against Torture (“CAT”), and
voluntary departure in the alternative. We have jurisdiction under 8 U.S.C. §
1252. Reviewing for substantial evidence, Garcia v. Holder, 749 F.3d 785, 789
(9th Cir. 2014), we deny the petition in part and dismiss it in part.
1. Gutierrez Hernandez contends that she would more likely than not be
subject to persecution in Mexico because of her membership in her family.1
She testified that she feared returning to Mexico because, after her son-in-law
was shot, the shooter threatened to harm the entire family if her son-in-law
cooperated with the police in their investigation. The IJ and BIA rejected
Gutierrez Hernandez’s claim, reasoning that the harm she feared was
speculative because the shooting happened nearly twenty years ago; there was
no evidence that the shooter intended to make good on his threat; and her family
members in Mexico had not been harmed to date. Substantial evidence supports
this conclusion. Gutierrez Hernandez testified that her siblings remained in the
same town where her son-in-law was shot, and that they had not been harmed
since. Moreover, the shooter’s threat was contingent on her son-in-law
cooperating with police, and Gutierrez Hernandez testified that he did not do so.
The record therefore does not compel the conclusion that Gutierrez Hernandez
1 Because Gutierrez Hernandez does not argue in her petition for review
that she suffered past persecution, we do not consider whether she is entitled to
a presumption of future persecution. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259 (9th Cir. 1996) (“[A]n issue . . . not discussed in the body of the
opening brief is deemed waived.”).

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would more likely than not be subject to persecution upon return to Mexico.
See INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).
2. Substantial evidence also supports the agency’s determination that
Gutierrez Hernandez is not eligible for CAT relief. The IJ and BIA concluded
that she did not demonstrate that she would more likely than not be tortured
upon return to Mexico, or that the government would acquiesce to such torture.
The record supports the agency’s conclusion that Gutierrez Hernandez’s fear
was speculative because she did not provide any evidence that anyone would
seek to harm her in particular. See Xiao Fei Zheng v. Holder, 644 F.3d 829,
835–36 (9th Cir. 2011). And the record does not compel the conclusion that the
government would acquiesce to any possible harm Gutierrez Hernandez might
suffer at the hands of her son-in-law’s shooter, given her testimony that police
tried to investigate the original shooting.
3. Gutierrez Hernandez also argues that the agency erred in concluding
that she was ineligible for voluntary departure based on her conviction for
criminal impersonation because her conviction was outside the relevant five-
year period under 8 U.S.C. § 1229c(b)(1). In her brief before the BIA,
Gutierrez Hernandez did not make any argument regarding the timing of her
conviction, nor did she even mention the date of the conviction; rather, she
argued only that her conviction should not be considered a crime of moral
turpitude. Because the timing issue is unexhausted, we lack jurisdiction to
review it. See 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554 F.3d 1203, 1208

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(9th Cir. 2009) (en banc) (holding that a petitioner is “deemed to have
exhausted only those issues he raised and argued in his brief before the BIA”).2
PETITION DENIED IN PART and DISMISSED IN PART.
2 Gutierrez Hernandez did not challenge the BIA’s denial of
administrative closure in her opening brief, so we do not address that claim. See
Martinez-Serrano, 94 F.3d at 1259.

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