NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUCIA MARIA JOSE, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70500 

Agency No. A209-389-597 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 4, 2021

Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and DONATO,** District 

Judge.

Lucia Maria Jose, a native and citizen of Mozambique, petitions for review 

of the Board of Immigration Appeals’ (BIA) dismissal of her appeal of an 

Immigration Judge’s (IJ) denial of her application for asylum, withholding of 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James Donato, United States District Judge for the 

Northern District of California, sitting by designation.

FILED

FEB 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

removal, and protection under the Convention Against Torture (CAT). We have 

jurisdiction under section 242 of the Immigration and Nationality Act, 8 U.S.C. 

§ 1252. We deny the petition.

1. Substantial evidence supports the BIA’s determination that the 

Government met its burden of rebutting the presumption of future persecution 

arising from the IJ’s finding that Jose suffered past persecution at the hands of her 

parents and the local Muslim community due to her conversion to Christianity. 

The Government demonstrated that there had been a fundamental change in 

circumstances since Jose endured public shaming instigated by her Muslim parents 

in 2000, when she was 14. Both parents have been deceased since 2013. And 

before they passed, according to Jose, she became friends with them and “resolved 

their differences.” Further, though Jose remained in Mozambique through 2016, 

there is no evidence that she suffered any religion-related harm from 2013 to 2016. 

As for her local community, Jose testified that “everything is ok” with her 

congregation and that she would not be harmed in the future because of her 

religion. Jose’s reliance on Muhur v. Ashcroft, 355 F.3d 958 (7th Cir. 2004) is thus 

misplaced, as her admission that she does not fear future persecution on the basis 

of religion did not rest on her concealing her religious beliefs. See 355 F.3d at 

960–61.
3 

Substantial evidence supports the BIA’s finding that Jose failed to 

demonstrate a nexus between Fernando’s attempt to kill her and subsequent 

harassment and her religion. Jose testified she did not know why Fernando was 

after her and “to this day” she does not “have any clue.” Asylum applicants must 

offer “some evidence” of a persecutor’s motive. INS v. Elias-Zacarias, 502 U.S. 

478, 483 (1992). Rather, the record indicates that Fernando did not attempt to kill 

her because of her religious beliefs, but that he was contracted to kill her, and “just 

doing his job.” 

Similarly, Jose’s assertions that she was sexually assaulted by two older 

neighborhood boys following her public shaming, that she received menacing calls 

for several years, and that she was the victim of home break-ins that worsened after 

her parents’ deaths, bear no nexus to her Christian faith. Thus, to the extent that 

these acts rise to the level of persecution, Jose failed to demonstrate that her 

religion is the “one central reason” or even part of the reason motivating these acts. 

See Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017).

Because Jose failed to meet the lesser burden of establishing eligibility for 

asylum, she necessarily failed to meet the more stringent “clear probability” 
4 

standard for withholding of removal.1 Navas v. INS, 217 F.3d 646, 663 (9th Cir. 

2000).

2. The BIA did not err in concluding that Jose’s due process rights were 

not violated by the stipulated agreement to follow the procedures set forth in Grava 

v. INS, 205 F.3d 1177 (9th Cir. 2000), and by reliance on her revised declaration, 

rather than taking her oral testimony. It was Jose’s own counsel who stipulated to 

the Grava procedures in exchange for deeming Jose’s testimony credible, and Jose 

has failed to raise an ineffective assistance of counsel claim at any point in these 

lengthy proceedings. Nor has she complied with the procedural requirements for 

doing so. See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).

In Grava, we held that an “applicant need not testify on his or her own 

behalf . . . and may rest on the application alone, subject to INS examination at the 

hearing.” Grava, 205 F.3d at 1180. Here, the IJ properly asked Jose to verify that 

her application was complete and correct. Though at one point the IJ remarked 

that Jose “seemed confused,” the IJ subsequently explained the verification 

process, and repeatedly questioned Jose as to whether her application was “true 

and correct and up-to-date.” This stands in stark contrast to the proceeding in 

1

Jose waived review of her claim for CAT protection by failing to discuss it 

in her opening brief. Although Jose referred to the claim in the statement of facts 

section of her brief, “an issue referred to in the appellant’s statement of the case 

but not discussed in the body of the opening brief is deemed waived.” MartinezSerrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
5 

Colmenar v. INS, 210 F.3d 967 (9th Cir. 2000), where the IJ began the hearing by 

announcing “he had already judged Colmenar’s claim,” and precluded Colmenar

from testifying about who had “thrown the Molotov cocktail at him” or “about 

anything that was included in his written application.” 210 F.3d at 971.

DENIED.