United States v. Ivan Espinoza

United States Court of Appeals
For the Eighth Circuit
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No. 23-1720
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Juana Anastacia Castro-Cuin; D.L.C.C.F.D.; D.L.C.C.C.; D.L.C.C.E.T.
lllllllllllllllllllllPetitioners
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 31, 2023
Filed: November 3, 2023
[Unpublished]
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Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Juana Castro-Cuin, individually and on behalf of her three
minor children, petitions for review of an order of the Board of Immigration Appeals

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(“BIA”).1 The BIA rejected Castro-Cuin’s request to terminate the proceedings based
on Pereira v. Sessions, 138 S. Ct. 2105 (2018), and dismissed her appeal from an
immigration judge’s (“IJ”) decision denying her asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
As a preliminary matter, this court’s precedent forecloses Castro-Cuin’s
argument, based on Pereira, that the immigration court lacked jurisdiction over the
removal proceedings because the Notices to Appear were deficient. See Ali v. Barr,
924 F.3d 983, 986 (8th Cir. 2019); see also Tino v. Garland, 13 F.4th 708, 709 n.2
(8th Cir. 2021).
Having reviewed the record and the parties’ arguments on appeal, we conclude
the agency properly denied Castro-Cuin’s asylum application. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1) (refugee asylum eligibility requirements). Even
assuming her proposed particular social group (“PSG”) was cognizable, substantial
evidence supports the conclusion she failed to establish a nexus between her proposed
PSG and any persecution she claimed to have suffered or feared. See Silvestre-Giron
v. Barr, 949 F.3d 1114, 1119 & n.3 (8th Cir. 2020) (reviewing for substantial
evidence the nexus factual determination); Garcia-Moctezuma v. Sessions, 879 F.3d
863, 869 (8th Cir. 2018) (reversing only upon determination “a reasonable factfinder
would have to conclude” the petitioner’s proposed protected ground “actually and
sufficiently motivated his persecutors’ actions”).
A reasonable factfinder could also conclude Castro-Cuin failed to establish past
persecution or a well-founded fear of future persecution. See Galloso v. Barr, 954
F.3d 1189, 1191-93 (8th Cir. 2020), as amended (Apr. 15, 2020) (noting persecution
1We refer to Castro-Cuin because her children’s applications are derivative of
their mother’s application. See 8 U.S.C. § 1158(b)(3)(A), (B). There are no
derivative benefits for withholding of removal or relief under the Convention Against
Torture. See Fuentes v. Barr, 969 F.3d 865, 868 n.1 (8th Cir. 2020).
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is defined as a harm inflicted by the government or by persons or an organization the
government was unable or unwilling to control); Cano v. Barr, 956 F.3d 1034,
1039-40 (8th Cir. 2020) (noting persecution “is an extreme concept” excluding
low-level intimidation and harassment, and an applicant may not merely rely on
reasons unsuccessfully used for past persecution claim to establish a well-founded
fear of future persecution). To the extent Castro-Cuin relies on her daughter’s
testimony in this appeal, or intended to argue the agency erred in discounting her
daughter’s testimony in its persecution analysis, she has waived the ability to do so
by failing to contest the IJ’s adverse credibility finding in the counseled brief she
filed with the BIA. See Brizuela v. Garland, 71 F.4th 1087, 1092 & n.4 (8th Cir.
2023).
Because Castro-Cuin failed to establish eligibility for asylum, the BIA properly
concluded she necessarily could not meet the higher burden of proof required for
withholding of removal. See Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008).
We also conclude substantial evidence supports the agency’s denial of CAT relief.
See Martin Martin v. Barr, 916 F.3d 1141, 1144-45 (8th Cir. 2019).
Accordingly, the petition for review is denied. See 8th Cir. R. 47B.
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