Antonio Moo Mis v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 3, 2021
• Docket: 19-70069
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTONIO SANTOS MOO MIS, AKA No. 19-70069 Santos Antonio Moo Mis, Agency No. A098-269-704 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 1, 2021** San Francisco, California

Before: SILER,*** RAWLINSON, and BUMATAY, Circuit Judges.

Antonio Moo Mis, a 37-year-old Mexican native, was ordered removed by an

immigration judge (“IJ”) under 8 U.S.C. § 1182(a)(6)(A)(i). Moo Mis conceded

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. removability but sought relief in the form of asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). The IJ denied each

claim, and the Board of Immigration Appeals (“BIA”) affirmed. Moo Mis timely

petitioned our court for review. He challenges the BIA’s decision only as to his

withholding and CAT claims, not his asylum claim. For the reasons explained

below, we deny his petition.

1. Moo Mis claims eligibility for withholding of removal based on three

sources of alleged persecution: his family, gang members, and a third group of

unknown assailants who are prejudiced against Americanized Mexicans. Substantial

evidence supports the BIA’s conclusion as to each ground.

First, even if the domestic abuse that Moo Mis experienced as a child

constituted past persecution, substantial evidence supports the BIA’s determination

that a “fundamental change in circumstances” rebuts the presumption that he will

face similar abuse if he returns to Mexico. See 8 C.F.R. § 1208.16(b)(1)(i)(A). As

the BIA noted, Moo Mis—who was 37-years old at the time of his hearing—had not

been beaten by his mother or stepdad since he was 13. Moo Mis offers no

explanation or evidence to explain why his childhood domestic abuse would reoccur

if he returns to Mexico as a man in his late 30s. Instead, he merely argues

withholding claims should be analyzed from the perspective of the child and take

into account the victim’s age at the time of the persecution. But that is only true

2 with respect to past persecution. See, e.g., Hernandez-Ortiz v. Gonzales, 496 F.3d

1042, 1046 (9th Cir. 2007) (“[I]njuries to a family must be considered in an asylum

case where the events that form the basis of the past persecution claim were

perceived when the petitioner was a child.”) (emphasis added). To evaluate changed

circumstances, the agencies need not blind themselves to the inherent differences

between a 13-year-old boy and a 37-year-old man.1

Second, substantial evidence supports the BIA’s conclusion that Moo Mis has

not shown persecution on account of a political opinion based on his resistance to

gang recruitment efforts. Moo Mis claims persecution based on his opinion that

cartels are morally wrong and destructive, but he cites no record evidence to show

that he holds this opinion—let alone that he ever publicly expressed it such that

others would assign this belief to him. See Santos-Lemus v. Mukasey, 542 F.3d 738,

747 (9th Cir. 2008) (upholding BIA where petitioner “did not present evidence that

he was politically or ideologically opposed to the ideals espoused by the Mara or to

gangs in general, or that the Mara imputed to [the petitioner] any particular political

belief”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081

(9th Cir. 2013) (en banc). Indeed, Moo Mis admitted that he has not done anything

1 Moo Mis also argues that the agencies erred by failing to analyze his alleged particular social group relating to his child abuse, but since the BIA found that changed circumstances rebutted any claim of persecution, it did not need to reach the nexus element. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (BIA need not reach issues that would not change the result reached).

3 to oppose gangs or publicly spoken out against them. The sole basis for his claim is

that he resisted a gang’s recruitment efforts when he was 19. But resistance to a

gang’s recruitment efforts, by itself, does not constitute a “political opinion.” See

Santos-Lemus, 542 F.3d at 747.

Finally, substantial evidence supports the conclusion regarding Moo Mis’s

fear of persecution as a “pocho,” which is slang for an Americanized Mexican. Our

prior cases have recognized that “returning Mexicans from the United States,” or

similar formulations of that group, is “too broad to qualify as a cognizable social

group.” Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010); see also

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (rejecting proposed

group of returning Mexicans who are viewed as wealthy Americans). We believe

Moo Mis’s particular social group of being “pocho” is sufficiently foreclosed by

Delgado-Ortiz and Ramirez-Munoz. Moo Mis fails to offer a compelling reason for

us to depart from these cases now.

2. To qualify for CAT protection, an applicant must show it is “more

likely than not” he “would be tortured if removed to the proposed country….” 8

C.F.R. § 1208.16(c)(2). Substantial evidence supports the BIA’s conclusion that

Moo Mis has not made this showing. When asked what he thought might happen to

him if returned to Mexico, Moo Mis simply said, “I don’t know, perhaps other things

could happen that one does not know about.” Moo Mis relies exclusively on

4 country-conditions evidence showing that Mexico is plagued by gang violence. This

is insufficient to compel the conclusion that he will face a particularized risk of

torture. See Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006) (general

reports regarding torture in a petitioner’s home country do not compel conclusion

that the petitioner faces likely torture). That is particularly true here, since the record

evidence shows that Moo Mis is from Yucatan, one of the least-dangerous states in

Mexico. Nor do we find any merit to Moo Mis’s argument that the BIA

insufficiently considered his CAT claim, which is ultimately just a disagreement

with the BIA’s decision.

PETITION DENIED.