Bautista Santiago v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2023
• Docket: 22-86
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HELADIO BAUTISTA SANTIAGO, No. 22-86 Agency No. Petitioner, A075-879-287 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 12, 2023 ** Portland, Oregon

Before: RAWLINSON and SUNG, Circuit Judges, and RAKOFF, District Judge.***

Heladio Bautista Santiago (Petitioner), a native and citizen of Mexico,

seeks review of the Board of Immigration Appeals’ (“BIA”) decision affirming

the Immigration Judge’s (“IJ”) denial of his applications for asylum,

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s

factual findings for substantial evidence, and its decisions on questions of law

and mixed questions of law and fact de novo. Conde Quevedo v. Barr, 947 F.3d

1238, 1241 (9th Cir. 2020). For the following reasons, we deny the petition.

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

indigenous race was not “one central reason” for any feared persecution. A

“central reason” is a “reason of primary importance to the persecutors,” without

which they would not have acted. Parussimova v. Mukasey, 555 F.3d 734, 741

(9th Cir. 2009). To be a central reason, “the protected ground . . . cannot be

incidental, tangential, superficial, or subordinate to another reason for harm.”

Id. (quoting In re J–B–N & S–M, 24 I. & N. Dec. 208, 214 (2007)); see also

Kaur v. Garland, 2 F.4th 823, 835 (9th Cir. 2021). Petitioner testified that the

dominant cartel in his hometown extorts both indigenous and non-indigenous

people, namely anyone with a business, and attacks those who fail to pay. That

testimony supports the finding that, in Petitioner’s case, indigenous race is not a

motive that “standing alone, would have led the persecutor to harm the

applicant.” Parussimova, 555 F.3d at 741. The record does not compel the

contrary conclusion that Petitioner’s race would be more than a “subordinate”

reason for potential persecution. Id.

2. The BIA correctly determined that Petitioner’s proposed particularized

social group of “indigenous men who are small business owners and recent

2 arrivals from the United States” is not cognizable because it lacks immutability,

due in part to the changeable nature of one’s occupation. See Conde Quevedo,

947 F.3d at 1242. We have held that occupation-based social groups like

Petitioner’s are too broad to qualify as a particularized social group because

“[t]here is neither a voluntary relationship nor an innate characteristic to bond

its members.” Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005)

abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th

Cir. 2013) (en banc); Macedo Templos v. Wilkinson, 987 F.3d 877, 882-83 (9th

Cir. 2021) (being a “wealthy business owner” is not fundamental to an

individual’s identity). For similar reasons, we have also held social groups

involving “recent arrivals from the United States” are not cognizable. Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (rejecting proposed

group of “returning Mexicans from the United States”); Reyes v. Lynch, 842

F.3d 1125, 1139-40 (9th Cir. 2012) (upholding the Board’s rejection of

purported group of “deportees from the United States to El Salvador”). Despite

the limitation to “indigenous men,” the proposed social group is still defined in

part by occupation and lacks immutability.

3. Because Petitioner failed to establish eligibility for asylum, he

necessarily failed to establish eligibility for withholding of removal. See

Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021). The IJ’s finding that

Petitioner failed to establish he would “more likely than not” be persecuted

based on his race, was supported by substantial evidence. See Barajas-Romero

3 v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Petitioner also argues that the IJ

failed to consider the full record in denying his statutory withholding of removal

claim – namely, by ignoring country conditions evidence and the reported

disappearances of indigenous students. But the IJ explicitly addressed both

pieces of evidence. Further, neither the IJ nor BIA are required to “expressly

parse or refute on the record each individual argument or piece of evidence

offered by the petitioner.” Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1040

(9th Cir. 2011) (citation omitted); see also Almaghzar v. Gonzales, 457 F.3d

915, 922 (9th Cir. 2006).

4. Even assuming Petitioner preserved his CAT claim, the record does

not compel the conclusion that Petitioner is eligible for CAT relief. To be

eligible, “an applicant must show ‘it is more likely than not that he or she would

be tortured if removed to the proposed country of removal’” and that the torture

would occur “by or at the instigation of or with the consent or acquiescence of a

public official.” Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir.

2022) (citations omitted). The threat of torture must also be particularized.

Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam). The

record does not compel the conclusion that Petitioner faces a particularized risk

of torture. To support his claim, Petitioner points only to two unsolved extortion

and torture cases involving indigenous men in his area, and reports about the

disappearances of indigenous schoolchildren and the widespread discrimination

and harassment facing indigenous Mexicans, especially women and children.

4 These third-person accounts do not establish a particularized risk of torture to

Petitioner. Delgado-Ortiz, 600 F.3d at 1152 (citation omitted) (“generalized

evidence of violence and crime in Mexico” is insufficient to establish eligibility

for CAT relief); see also B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022)

(citation omitted).

PETITION DENIED.