Angel Perez-Perez v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2021
• Docket: 19-70938
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL FELIPE PEREZ-PEREZ, AKA No. 19-70938 Lopez, Agency No. A202-069-682 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted March 5, 2021** Phoenix, Arizona

Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.

Petitioner Angel Felipe Perez-Perez, a Guatemalan native and citizen of

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. indigenous Mayan descent, seeks review of an order entered by the Board of

Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of

his application for withholding of removal under the Immigration and Nationality

Act, and for protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019) (citing Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). We review

legal questions de novo and factual findings for substantial evidence. Conde

Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). Whether a particular social

group is cognizable is a question of law, but whether that group is socially distinct

is a question of fact. Id. at 1242.

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

was insufficiently likely to suffer persecution on account of his family membership

to be entitled to withholding of removal. “[W]hen similarly situated members of

the petitioner’s family live without incident in the alleged danger zone, such family

evidence and the inferences drawn from it does substantially support the agency

decision . . . .” Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008)

(internal quotation marks, modifications, and citation omitted), abrogated on other

2 grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

Here, it is undisputed that Petitioner’s parents have “remained unharmed” in his

hometown. See id. And they are similarly situated because they helped file the

police report that Petitioner merely encouraged, and they too received unfulfilled

threats of violence. While the IJ erroneously assumed that Petitioner’s sister also

remained in Guatemala, the BIA expressly declined to rely on that part of the IJ’s

reasoning. See Duran-Rodriguez, 918 F.3d at 1027–28 (noting that we review only

those parts of the IJ’s decision on which the BIA relied). And despite Petitioner’s

suggestions otherwise, the BIA gave adequate attention to his individual risk of

persecution, but simply found that risk insufficient. Substantial evidence

supported that conclusion. See Santos-Lemus, 542 F.3d at 743–44; see also

Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (“Unfulfilled threats are very

rarely sufficient to rise to the level of persecution . . . .”) (citing Hoxha v. Ashcroft,

319 F.3d 1179, 1182 (9th Cir. 2003)).

There is also substantial evidence that Petitioner’s Mayan ethnicity was not

“a reason” members of MS-13 attacked him in 1999. See Barajas-Romero v.

Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017). Petitioner’s assailants never

mentioned his ethnicity, and Petitioner testified that he was attacked because of his

resistance to recruitment, not because he is Mayan. The expert witness did not

testify otherwise. The record thus does not compel the conclusion that Petitioner

3 was attacked because he is Mayan. See Sanjaa v. Sessions, 863 F.3d 1161, 1164

(9th Cir. 2017) (finding no causal nexus where petitioner testified he was attacked

for a reason other than a statutorily protected ground and attackers never

mentioned that ground).

The BIA also reasonably found incognizable Petitioner’s proffered social

group of “Mayan men who have actively resisted gang recruitment.” See

Henriquez-Rivas, 707 F.3d at 1087. The record does not compel the conclusion

that Guatemalan society views that group as “sufficiently separate or distinct.” See

Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (quoting Pirir-Boc v.

Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)). Rather, substantial evidence

established that gang violence is widespread, and that the gangs target anyone they

deem advantageous. See id. at 981.

2. Substantial evidence also supports the finding that Petitioner’s fear of

torture is speculative, see Xiao Fei Zheng v. Holder, 644 F.3d 829, 836 (9th Cir.

2011), or based on a generalized fear of violence and corruption, see Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Moreover, the BIA

adequately considered the aggregate risk of torture. See Quijada-Aguilar v. Lynch,

799 F.3d 1303, 1308 (9th Cir. 2015) (“CAT claims must be considered in terms of

the aggregate risk of torture from all sources, and not as separate, divisible CAT

claims.”) (citing Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011)). The IJ

4 considered “the totality of the testimony and the other evidence in the record,” and

concluded that it was insufficiently likely Petitioner would be tortured if removed

to Guatemala. That was enough to deny Petitioner CAT protection.

The petition for review is DENIED.