Yamirka Laguna Lozano v. MERRICK GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAMIRKA LAGUNA LOZANO,
Petitioner,
v.
MERRICK GARLAND, Attorney General,
Respondent.
No. 20-71593
Agency No. A203-699-877
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
San Francisco, California
Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.
Petitioner Yamirka Laguna Lozano is a native and citizen of Cuba. Lozano
petitions for review of the Board of Immigration Appeals’s (“BIA”) decision
dismissing her appeal from the Immigration Judge’s (“IJ”) decision, which denied
her application for asylum, withholding of removal, and protection under the
* 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).
FILED
APR 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a), and we deny the petition.1
We review the agency’s “denials of asylum, withholding of removal, and CAT
relief” for substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th
Cir. 2014). To prevail under the substantial-evidence standard, a petitioner must
demonstrate “that the evidence not only supports, but compels the conclusion that
the[] [agency’s] findings and decisions are erroneous.” Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000). Where, as here, the BIA conducted its own review of
the evidence, we review the BIA’s legal conclusions de novo and limit our review
to the BIA’s decision “except to the extent the IJ’s opinion is expressly adopted.”
Id.
1. Substantial evidence supports the agency’s decision to deny Lozano’s
asylum application. To qualify for asylum, Lozano must show past persecution or a
well-founded fear of future persecution on account of a protected ground. 8 U.S.C.
§§ 1101(a)(42), 1158(b); 8 C.F.R. § 1208.13(b). Persecution is an “extreme
concept” and “does not include every sort of treatment our society regards as
offensive.” Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006) (citations omitted).
Whether a petitioner’s harm constitutes past persecution is “heavily fact-dependent”
and “perhaps best answered by comparing the facts of [the] [p]etitioner’s case with
1 Because the parties are familiar with the facts, we do not recite them here.

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those of similar cases.” Singh v. INS, 134 F.3d 962, 967–68 (9th Cir. 1998).
Lozano argues that her treatment—including arrests, detentions, assault, and
threats—amount to past persecution on account of her political opinion. Lozano’s
treatment, however, closely mirrors harm that does not compel a finding of past
persecution. See Gu, 454 F.3d at 1017–21, 1029 (holding that a reasonable factfinder
was not compelled to find past persecution after the petitioner was detained for three
days, struck on the back ten times with a rod, and interrogated in a room filled with
instruments of torture); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995) (holding
that a reasonable factfinder could have determined that four to six hours of detention,
combined with a police officer punching and kicking the petitioner, constituted past
persecution but did not compel the conclusion of past persecution); see also Hoxha
v. Ashcroft, 319 F.3d 1179, 1181–82 (9th Cir. 2003) (holding that prolonged
harassment, death threats, and one serious physical beating did not compel the
conclusion that the petitioner suffered past persecution).
Lozano also argues that she has a well-founded fear of future persecution,
which must be “subjectively genuine and objectively reasonable” to warrant asylum.
Rusak v. Holder, 734 F.3d 894, 896 (9th Cir. 2013) (citation omitted). The objective
component may be established by “adducing credible, direct, and specific evidence
in the record of facts that would support a reasonable fear of persecution.” Ladha v.
INS, 215 F.3d 889, 897 (9th Cir. 2000) (citation omitted), overruled on other

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grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam). Lozano appeared pro se at her hearing before the IJ and testified that her
“having come [to the United States] is the worst treason [she] could have done to
Cuba,” and that she would be jailed and made to disappear if she returns. Lozano
submitted declarations from two of her neighbors in Cuba who stated that they had
heard government officials threaten Lozano with disappearance and death. Lozano
was represented by counsel in her appeal to the BIA, but did not argue that the threats
she would “disappear,” or her flight from Cuba, were evidence supporting a
reasonable fear of persecution. Instead, her brief to the BIA focused on threats of
imprisonment and physical mistreatment on account of her political activity while
in Cuba. On the arguments raised, Lozano has failed to provide any credible, direct,
and specific evidence compelling the agency to find that she had an objectively
reasonable fear of future persecution.
2. Lozano failed to exhaust her withholding-of-removal claim and her
CAT claim before the BIA. A petitioner “exhaust[s] only those issues [s]he raised
and argued in h[er] brief before the BIA.” Abebe, 554 F.3d at 1208 (emphasis
added); see also Alanniz v. Barr, 924 F.3d 1061, 1069 & n.8 (9th Cir. 2019) (stating
that the petitioner failed to exhaust his CAT claim when it “was mentioned only
twice in [the petitioner’s] brief to the BIA . . . [and] [t]he brief contained no argument
for relief under the CAT”). Because Lozano’s brief before the BIA provided no

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reasons nor argument explaining why the IJ erred in denying her withholding-of-
removal claim and CAT claim, she failed to exhaust those two claims. See Abebe,
554 F.3d at 1208; see also Alanniz, 924 F.3d at 1069 & n.8. We therefore lack
jurisdiction to consider Lozano’s withholding-of-removal claim and CAT claim.
Abebe, 554 F.3d at 1208.
PETITION DENIED IN PART AND DISMISSED IN PART.

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