Jeidy Esquivel-Rubinos v. Jefferson SessionsJeidy Esquivel-Rubinos v. Jefferson Sessions
When a prisoner challenges a confining institution’s justifications for a policy that substantially burdens religious exercise, “prison officials must set forth detailed evidence, tailored to the situation before the court, that identifies the failings in the alternatives advanced by the prisoner.” Warsoldier, 418 F.3d at 1000 (citation omitted). Defendants have not done so and, to the contrary, conceded that Nance’s proposal would not adversely affect security. Accordingly, the panel will direct the entry of summary judgment for Nance on his request to order scented oils from an approved vendor, to be stored by the chaplain and used under the chaplain’s supervision.
Whether Defendants’ burden on Nance’s exercise of his sincerely held religious belief that he must wear a fist-length beard furthers a compelling government interest, and whether the one-inch maximum under ADC’s grooming policy is the least restrictive means of advancing that interest, is not as clear. That issue will be remanded to the district court for further proceedings.
4. Conclusion
For the foregoing reasons, we find that Nance carried his burden under RLUIPA to show that his desired religious exercises are substantially burdened and we reverse the district court’s summary judgment. Regarding scented oils, we find that Defendants not only failed to present detailed evidence that Nance’s proposed alternative would be unworkable but conceded that it would not affect prison security, and we direct the district court to enter summary judgment for Nance on that issue. We remand for further proceedings regarding Defendants’ restriction on the length of Nance’s beard.
REVERSED and REMANDED with instructions.
Wendy Benner-Leon, Esquire, Aaron Nelson, Trial Attorney, OIL, DOJ—U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel, Department of Homeland Security, San Francisco, CA, for Respondent
Before: BYBEE and M. SMITH, Circuit Judges, and DORSEY,** District Judge.
MEMORANDUM ***
Jeidy Patricia Esquivel-Rubinos petitions for review of the Board of Immigration Appeal’s (BIA) denial of her requests for asylum, withholding of removal, relief under the Convention Against Torture (CAT), and cancellation of removal. We review legal questions de novo and the BIA’s factual findings for substantial evidence. Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir. 2015). Because the BIA’s decisions were supported by substantial evidence, we deny the petition.
A. Substantial evidence supports the BIA’s denial of asylum.
A petitioner must file her application for asylum within one year of arriving in the United States. See
The BIA found that Esquivel-Rubinos was barred from asylum because she filed her application 14 years after arriving and did not allege eligibility on appeal. Esquivel-Rubinos does not allege changed circumstances that materially affect her eligibility for asylum. She argues that she was unaware of the filing deadline, but advances no precedent or regulation that would allow us to consider ignorance of the law as an extraordinary circumstance. The BIA’s asylum denial was supported by substantial evidence.
B. Substantial evidence supports the BIA’s denial of Esquivel-Rubinos’s withholding-of-removal application and CAT claim.
An applicant is entitled to withholding of removal if she demonstrates that it is “more likely than not” that she will be persecuted if she returns to the proposed country of removal. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999) (quotation marks omitted) (citing
The BIA found that Esquivel-Rubinos failed to establish that she suffered past persecution in Guatemala because she failed to show a nexus between her father’s death and one of the protected grounds enumerated in
The BIA also found that Esquivel-Rubinos failed to show a clear probability of future persecution or torture and that she failed to identify a specific social group of which she is a member. Though it appears that she claims “women in Guatemala” as her social group in both her application for asylum and appeal to the BIA, she did not establish any risk of future harm because of her membership in this group. Esquivel-Rubinos testified that neither she nor her mother or two sisters have been threatened or harmed in Guatemala, she did not “have in mind right now anyone” who might want to harm her, and her fear of violence in Guatemala stems from stories she hears. An “applicant’s claim of persecution upon return is weakened, even undercut, when similarly-situated family members continue to live in the country without incident.” Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (superseded by statute on other grounds). The BIA’s denial of Esquivel-Rubinos’s withholding-of-removal and CAT claims was supported by substantial evidence.
C. This court lacks jurisdiction to review the BIA’s rejection of Esquivel-Rubinos’s cancellation-of-removal claim.
To qualify for cancellation of removal, a nonpermanent resident alien must demonstrate that removal would result in exceptional hardship to the alien’s spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Esquivel-Rubinos argues that the BIA violated her due process rights by failing to consider the hardship on her three United States-citizen children stemming from: (1) her lack of alternative means of immigrating to the United States for at least ten years or until she has a qualifying relative for a waiver; (2) the uncertainty of her husband’s immigration situation; and (3) the aggregate result of these hardships combined with those created by separation from family and diminished financial support and educational opportunities if she returns to Guatemala with her children.
The BIA found that the IJ “properly weighed the totality of the factors” in making his hardship determination, including hardships resulting from economic, emotional, and educational factors, and family separation if the father does not go to Guatemala. The BIA also considered the testimony of Esquivel-Rubinos’s husband about the uncertainty of his own immigration situation and his stated inability to support his family at current economic levels if the children move back to Guatemala with Esquivel-Rubinos. And it noted in the order that if Esquivel-Rubinos “fails to voluntarily depart the United States within
Esquivel-Rubinos did not meet her burden of establishing that the BIA violated her right to due process by failing to consider relevant evidence. This court thus lacks jurisdiction to review the BIA’s dismissal of Esquivel-Rubinos’s appeal from the denial of her cancellation-of-removal claim.
The petition for review is DENIED.