Maria Rodriguez Mosqueda v. Merrick Garland
19-72728
| 9th Cir. | Feb 18, 2022Background:
- Rodriguez witnessed two cousins being shot in Mexico but did not see the shooter’s face.
- About a week later she received threatening text messages from someone claiming to be the shooter; no physical harm thereafter to her or her daughter.
- Rodriguez applied for asylum, withholding of removal, and CAT protection; an IJ denied relief for lack of past persecution and because internal relocation in Mexico was reasonable; the IJ also found no well‑founded fear of future persecution.
- The BIA adopted and affirmed the IJ’s decision, agreeing that relocation in Mexico was reasonable and treating any IJ error regarding designation of a particular social group as harmless.
- Rodriguez petitioned for review in the Ninth Circuit but did not challenge the BIA’s relocation finding or the CAT denial on appeal (issues waived).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rodriguez suffered past persecution | Threatening texts from the shooter and witnessing the shooting amount to past persecution | Unfulfilled threats and witnessing violence without personal injury do not constitute past persecution | No; substantial evidence supports finding of no past persecution |
| Whether Rodriguez has a well‑founded fear of future persecution | Threats and the shooting create both subjective fear and an objective risk | Objective risk is rebutted because reasonable internal relocation within Mexico is available | No; fear not well‑founded because relocation is reasonable |
| Whether withholding of removal is warranted | Same facts support withholding because relocation is not possible for safety | Withholding requires proof that relocation is not reasonable or possible; similarly situated family members remain safely in Mexico | Denied; substantial evidence supports BIA’s denial due to reasonable relocation |
| Whether CAT protection applies | Rodriguez sought CAT protection based on risk of torture from the shooter | BIA denied CAT protection; petitioner did not challenge this ruling on appeal | Waived on appeal; not considered by the Ninth Circuit |
Key Cases Cited
- Kaur v. Wilkinson, 986 F.3d 1216 (9th Cir. 2021) (asylum requires persecution or well‑founded fear on a protected ground)
- Deloso v. Ashcroft, 393 F.3d 858 (9th Cir. 2005) (past persecution gives rise to presumed fear of future persecution)
- Lim v. INS, 224 F.3d 929 (9th Cir. 2000) (unfulfilled threats generally indicate future danger, not past persecution)
- Duran‑Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019) (limits the small category of cases where threats alone constitute past persecution)
- Martinez‑Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (issues not raised in opening brief are waived)
- Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994) (same waiver principle)
- Hakeem v. INS, 273 F.3d 812 (9th Cir. 2001) (family members remaining safely in home country undermines fear of persecution)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (discusses relocation and family presence; later superseded on other statutory grounds)