NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 31 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINTHIA GERALDINA GUZMAN No. 20-71896 VALLECILLO, et al., Agency Nos. A206-453-844 Petitioners, A206-453-845

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 29, 2022** Pasadena, California

Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN,*** District Judge.

Petitioners Cinthia Geraldina Guzman Vallecillo and her minor daughter

seek review of a final order of removal issued by the Board of Immigration

* 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 Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. Appeals (“BIA”). In its decision, the BIA dismissed Petitioners’ appeal of the

Immigration Judge’s (“IJ”) order denying Petitioners’ applications for asylum,

withholding of removal, and protection pursuant to the regulations implementing

the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8

U.S.C. § 1252. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).

1. The BIA affirmed the IJ’s denial of Petitioners’ asylum and

withholding of removal claims because Guzman Vallecillo did not establish past

persecution or a well-founded fear of future persecution on account of a protected

ground. Because Petitioners do not raise any challenge to the IJ’s conclusion that

they could not establish the requisite nexus in their opening brief, they have

waived review of these claims. See Jin v. Holder, 748 F.3d 959, 964 n.2 (9th Cir.

2014).

2. The BIA concluded–and Petitioners do not challenge on appeal–that

Petitioners waived their claim for CAT relief because they did not contest the IJ’s

determination that they failed to present evidence that it is more likely than not that

Guzman Vallecillo will be subjected to torture in Honduras by or with the

acquiescence of a public official or other persons acting in an official capacity. We

therefore lack jurisdiction to review the IJ’s denial of CAT relief. Vargas v. INS,

831 F.2d 906, 907-08 (9th Cir. 1987).

2 3. Petitioners argue the BIA erred in denying their claim for ineffective

assistance of counsel, concluding there was no evidence in the record to support

their contention that counsel should have argued Guzman Vallecillo was subject to

persecution on account of her membership in the particular social group of

“Honduran women” and on account of her anti-gang political opinion. We review

de novo ineffective assistance of counsel claims. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). “Ineffective assistance of counsel in a [removal]

proceeding is a denial of due process under the Fifth Amendment if the proceeding

was so fundamentally unfair that the alien was prevented from reasonably

presenting h[er] case.” Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011)

(citations omitted). To prevail, Petitioners must show that they were prejudiced by

their attorney’s actions. Id. at 886-87. To establish prejudice, Petitioners must

show their lawyer’s actions “could have affected the outcome of the proceedings.”

Id. at 887 (emphasis in original).

The BIA properly concluded no prejudice resulted from counsel’s failure to

raise claims based on membership in the particular social group of “Honduran

women,” or based on Guzman Vallecillo’s anti-gang political opinion. The record

is devoid of evidence that the gang had any motive other than retribution and

financial gain. Rather, the evidence presented to the IJ establishes the Mara 18

gang threatened Guzman Vallecillo because she contacted law enforcement in

3 connection with her partner’s murder, rather than due to her membership in a

particular social group. Guzman Vallecillo testified she and other victims’ family

members were threatened by the gang after reporting their relatives were

murdered. She testified only family who went to the police were threatened. She

further testified that none of the individuals who were threatened have been

harmed by the gang and, neither she, nor the others have been threatened after May

7, 2010. This testimony contravenes her claim that she was targeted based on her

status as a woman. Harm or fear of harm on account of a personal animus is an

insufficient basis for asylum and withholding of removal. Madrigal v. Holder, 716

F.3d 499, 506 (9th Cir. 2013) (“[M]istreatment motivated purely by personal

retribution will not give rise to a valid asylum claim . . . .”). Moreover, Petitioner’s

testimony did not suggest that her cooperation with police was political in nature,

rather than a desire to locate her partner.

Guzman Vallecillo also testified about the gang extorting payment from her

to sell fruit at the local market, however, this supports the conclusion that the gang

members were motivated by financial gain which likewise does not support her

claim. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

Because the evidence of record established the gang’s motivation was

retributive and financial in nature, Guzman Vallecillo necessarily could not show

her attorney’s decision to forego raising claims based on her membership in the

4 particular social group of “Honduran women,” or based on her purported anti-gang

political opinion could have had an impact on the outcome of the proceedings.

Petitioners therefore cannot show they were prejudiced by counsel’s strategic

decision and their claim for ineffective assistance of counsel fails.

PETITION DENIED IN PART; DISMISSED IN PART.

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