Angel Perez Rodriguez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2022
• Docket: 16-71325
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL TOMAS PEREZ RODRIGUEZ, No. 16-71325

Petitioner, Agency No. A204-506-845

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 12, 2022** Pasadena, California

Before: PAEZ and BADE, Circuit Judges, and CARDONE,*** District Judge.

Petitioner Angel Tomas Perez Rodriguez (“Perez”) petitions for review of

the Board of Immigration Appeals’ (“BIA” or “Board”) decision denying his

* 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. application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We deny

in part and dismiss in part the petition for review.

When the BIA agrees with the Immigration Judge’s (“IJ”) decision and

“adds its own reasoning,” we review the BIA’s decision 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). We review factual findings for substantial evidence. Id. at 1028.

1. Asylum. In reviewing Perez’s asylum application, the IJ determined that

it was not filed within the one-year deadline to apply for asylum. See 8 U.S.C.

§ 1158(a)(2)(B). The IJ also found that Perez did not establish an exception to the

deadline. See id. § 1158(a)(2)(D). On appeal, Perez did not challenge that finding

and the BIA affirmed the IJ’s timeliness finding. Similarly, the petition for review

does not challenge the agency’s timeliness determination. Instead, Perez seeks to

challenge the IJ and BIA’s alternative reasons for denying his asylum application

on the merits. Because Perez failed to challenge the untimeliness determination on

appeal to the BIA and in his petition to this court, he has failed to exhaust and has

waived appellate review of the issue. See 8 U.S.C. § 1252(d)(1) (exhaustion);

Corro Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (waiver).

Thus, we dismiss the petition with respect to Perez’s application for asylum

without considering the agency’s alternative reasons for denying that relief. The

2 one-year deadline, however, does not apply to withholding or CAT relief. Shire v.

Ashcroft, 388 F.3d 1288, 1294 (9th Cir. 2004).

2. Withholding of removal. Perez’s claim for withholding of removal is

based on his family as a “particular social group” (“PSG”) and, in particular, his

relationship to his father. See 8 C.F.R. § 1208.16(b). The BIA agreed with the IJ

that Perez’s family was a cognizable PSG but that he failed to show past

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

protected ground. See id. Substantial evidence supports the agency’s finding that

Perez did not suffer past persecution.1 The harm to family members is relevant to

assessing whether Perez suffered past persecution, as the IJ acknowledged, but this

court has “not found that harm to others may substitute for harm to an

applicant . . . who was not in the country at the time he claims to have suffered past

persecution there.” Tamang v. Holder, 598 F.3d 1083, 1091-92 (9th Cir. 2010).

Perez was not in Mexico when his father was killed or when he learned about his

father’s killing. See Gonzalez-Medina v. Holder, 641 F.3d 333, 337 (9th Cir.

2011) (citing 8 C.F.R. § 1208.16(b)(1)(i)). Thus, these events cannot constitute

past persecution. Further, substantial evidence supports the agency’s finding that

any past harm was not “on account of” his family as a cognizable PSG. See

1 Because Perez raised past persecution multiple times, discussed relevant caselaw, and discussed his father’s killing, the issue is not waived. See Ndom v. Ashcroft, 384 F.3d 743, 750-51 (9th Cir. 2004).

3 § 1208.16(b)(1)(i).

As to a well-founded fear of future persecution, substantial evidence

supports the agency’s finding that Perez did not show that he was more likely than

not to be persecuted because his family in Mexico remained unharmed.

§ 1208.16(b)(2). A fear of harm is undercut when similarly situated family

members continue to live in the country of return without incident. Hakeem v. INS,

273 F.3d 812, 816 (9th Cir. 2001), superseded by statute on other grounds as

stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).

Perez’s maternal uncle is not similarly situated because he is not a part of his

paternal family. See Rios v. Ashcroft, 287 F.3d 895, 902 (9th Cir. 2002) (finding

that the petitioner’s family was not similarly situated because they were not related

to the petitioner’s husband who had been killed). Perez’s paternal family

members, however, are similarly situated because they are related to his father.

See Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008) (“Where the

claimed group membership is the family, a family member’s continuing safety is

an even more persuasive factor in considering a petitioner’s well-founded fear.”).

The BIA also properly concluded that Perez’s fear of the general violence in

Mexico, even if well-founded, was not on account of a protected ground. See

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (holding that general crime

and violence bears no nexus to a protected ground).

4 3. Imputed political opinion. Perez also argues that gang members will

impute a pro-law enforcement or anti-gang political opinion to him based on his

relation to his father and uncle. Perez did not raise a political opinion or imputed

political opinion claim before the agency. Although the BIA briefly mentioned

political opinion, its token reference is insufficient to conclude that the BIA

addressed the issue on the merits. Cf. Parada v. Sessions, 902 F.3d 901, 914 (9th

Cir. 2018). Therefore, Perez’s imputed political opinion claim is unexhausted, and

we dismiss the petition to the extent it seeks relief on that basis. See 8 U.S.C.

§ 1252(d)(1).

4. CAT relief. Lastly, the record adequately supports the agency’s finding

that Perez did not show eligibility for CAT relief. Although there is evidence of

significant crime and violence in Mexico, the record does not compel the

conclusion that Perez would be at particular risk of torture or that the Mexican

government would be willfully blind to such torture. See Dhital v. Mukasey, 532

F.3d 1044, 1051-52 (9th Cir. 2008); Garcia-Milian v. Holder, 755 F.3d 1026,

1034-35 (9th Cir. 2014).

PETITION FOR REVIEW DENIED in part and DISMISSED in part.