                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            NOV 25 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRAYAN JOSUE ANDRADE MENDEZ,                     No.   17-72167
AKA Mia Elizabeth Andrade Mendez,
                                                 Agency No. A209-279-698
              Petitioner,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                      Argued and Submitted October 24, 2019
                                Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

      Petitioner Brayan Josue Andrade Mendez (“Petitioner”), a native and citizen

of Honduras, petitions for review of the Board of Immigration Appeals’ (“BIA”)

dismissal of her appeal from an Immigration Judge’s (“IJ”) final order of removal.

Petitioner argues the BIA erred in denying her applications for asylum,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
withholding of removal, and relief under the Convention Against Torture (“CAT”).

Mendez claims to fear harm because of her status as a transgender woman. We

have jurisdiction under 8 U.S.C. § 1252. We deny Mendez’s petition for review.

      Substantial evidence supports the BIA’s affirmance of the IJ’s denial of

relief. An asylum applicant must show he or she is unable or unwilling to return to

his or her home country because of persecution or a well-founded fear of

persecution on account of a protected ground, 8 U.S.C. §§ 1158(b)(1)(A), (B)(i); 8

U.S.C. § 1101(a)(42)(A), and that the persecutor is the government or persons or

groups the government is unable or unwilling to control, see Avetova-Elisseva v.

INS, 213 F.3d 1192, 1196 (9th Cir. 2000).

      Petitioner describes a past harm that rises to the level of persecution: sexual

abuse during early childhood by a family friend. The abuse occurred many years

before Petitioner identified or expressed her transgender identity, so this

persecution lacks nexus to a protected ground. Further, the abuser was later

caught, convicted, and jailed for similar abuse of a young boy, so Petitioner has not

shown the government was unwilling or unable or to control the abuser. Afriyie v.

Holder, 613 F.3d 924, 931 (9th Cir. 2010) (the government's response “may

provide powerful evidence” of its “willingness or ability to protect the requestor”),




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overruled in part on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051

(9th Cir. 2017) (en banc).

      Petitioner describes instances of discrimination that do not rise to the level

of persecution. Petitioner testified her mother threw her out of the family home at

age 17 because of her transgender identity and broke her tooth, that she was fired

from her job in a supermarket, and she was not permitted to register for an

educational course. Petitioner testified she was shoved against a wall and tasered

by police while resisting a search of herself and other sex workers she believed to

be unlawful, and that police hit her with a stick and pulled and dislocated her arm

while breaking up an LGBTI rights march Petitioner helped organize.

      These instances are discrimination or harassment, but they do not rise to the

level of persecution, either individually or in aggregate. Gu v. Gonzales, 454 F.3d

1014, 1019 (9th Cir. 2006) (a single incident of detention during which Gu was

struck in the back with a rod, required to report to police four or five times

thereafter, and warned against illegal activities by his employer but allowed to

return to his job without negative consequences was not persecution); Prasad v.

I.N.S., 47 F.3d 336, 339–40 (9th Cir. 1995) (being detained in a police cell for 4-6

hours, hit in the stomach, kicked from behind, and interrogated, but not charged,

then released, and not detained again, is harassment but does not constitute


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persecution); cf. Guo v. Ashcroft, 361 F.3d 1194, 1197–98 (9th Cir. 2004) (being

subjected to an arrest and 15 day detention, beatings, kicks, and shocks with an

electrically-charged baton, does constitute persecution). Further, an applicant must

show the persecutor is the government or persons or groups the government is

unable or unwilling to control. Avetova-Elisseva, 213 F.3d at 1196. For some of

these instances (job loss, family estrangement), Petitioner also did not show that

the government was the entity discriminating against her or was unable or

unwilling to control the person or entity discriminating against her.

      Petitioner testified that she was threatened by clients for whom she was a sex

worker if she exposed them as her clients, that a gang member demanded

protection money from biologic and transgender women including Petitioner, and

that the gang member threatened Petitioner and demanded she leave his territory

because he believed Petitioner was involved with a rival gang. These incidents are

unrelated to Petitioner’s status as a transgender woman, thus there is no nexus

between the harm Petitioner suffered in these incidents and Petitioner’s transgender

identity. Prasad, 47 F.3d at 340 (nationwide government curfew in effect for all

religions not connected to the petitioner’s religious practice).

      Petitioner raised a disfavored group and pattern and practice claim for the

first time in briefing before this court. A petitioner must exhaust administrative


                                           4
remedies for an issue for the court to have jurisdiction to review that issue. 8

U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

Because Petitioner did not raise this issue in her appeal brief to the BIA, it is

unexhausted and the court lacks jurisdiction to review it. Id.

      Withholding of removal is available to an alien if she can show a “clear

probability” that her life or freedom would be threatened on account of an

enumerated ground. INS v. Stevic, 467 U.S. 407, 430 (1984). Petitioner did not

meet the less stringent “well founded fear of persecution” standard required for

asylum, and so she has not met the more stringent “clear probability” standard for

withholding of removal. Fisher v. INS, 79 F.3d 955, 961, 965 (9th Cir. 1996). The

nexus standard for withholding of removal is less demanding than the nexus

standard for asylum. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017).

The court need not draw a distinction between the difference in standards where, as

here, substaintial evidence supports the BIA’s determination that there was no

nexus between the incident of persecution Petitioner identified, sexual abuse

during early childhood, and the protected ground. Id. (citing Zetino v. Holder, 622

F.3d 1007, 1016 (9th Cir. 2010)).

      Regarding CAT relief, Petitioner stated a general fear of gangs and

homophobic individuals. Petitioner has not shown it is “more likely than not” she


                                            5
would be tortured by the government or the government would “consciously close

their eyes to the [torture]” of Petitioner by others. Garcia-Milian v. Holder, 755

F.3d 1026, 1034–35 (9th Cir. 2014) (upholding denial of a CAT claim for an alien

who testified she had been kidnaped and raped by masked men in retaliation for

her husband’s political views but police said they did not have sufficient

information and declined to investigate, and stating evidence a government has

been “generally ineffective in preventing or investigating” crime does not raise an

inference it acquiesced to torture, and adding that country reports showing

Guatemala’s steps to combat violence against women had been ineffective do not

compel a conclusion that it acquiesced to torture).

      PETITION FOR REVIEW DENIED.




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