Carlos Mendoza-Perez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2020
• Docket: 18-72444
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS FRANCISCO MENDOZA- No. 18-72444 PEREZ, Agency No. A206-428-616 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted October 7, 2020 Seattle, Washington

Before: GRABER and W. FLETCHER, Circuit Judges, and FREUDENTHAL,** District Judge.

Petitioner Carlos Mendoza-Perez, a native and citizen of El Salvador, seeks

review of the Board of Immigration Appeals’ (“BIA”) final order affirming the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Nancy D. Freudenthal, United States District Judge for the District of Wyoming, sitting by designation. immigration judge’s (“IJ”) denial of his request for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).

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

not eligible for asylum or withholding or removal because he failed to establish

a nexus between the harm he experienced and a protected ground. See Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.”). We are not compelled to find that the

harm Petitioner suffered bore a nexus to his family membership. The agency

permissibly found that MS-13 targeted Petitioner for extortion because the gang

believed the family had money. See Leon-Hernandez v. INS, 926 F.2d 902, 904

(9th Cir. 1991) (“[T]he possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding from being

supported by substantial evidence.” (internal quotation marks omitted)). Indeed,

Petitioner’s own testimony and the testimony of his mother support this

conclusion.

Additionally, the record lacks evidence that Petitioner “was politically or

ideologically opposed to the ideals” of MS-13—or gangs generally—or that he was

attacked because of those beliefs. Barrios v. Holder, 581 F.3d 849, 856 (9th Cir.

2 2009) (internal quotation marks omitted), abrogated in part on other grounds by

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

2. The record compels a finding contrary to the BIA’s statement that

Petitioner offered only “general,” rather than individualized, evidence concerning

the possibility of torture. The IJ credited Petitioner’s testimony, and the

particularized evidence compels a finding that he likely would be killed if returned

to El Salvador. Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010) (standard

of review); cf. Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008) (per

curiam). For example, Petitioner demonstrated that MS-13 carried out prior death

threats, killing Petitioner’s father and uncle. The gang threatened Petitioner

personally, found him after he moved, and forcibly tattooed him with his family

name so other members could identify him as a target.

Remand is required, though, for the BIA to consider whether the government

would acquiesce in any such potential torture. Thus, we grant and remand the

petition as to Petitioner’s claim for CAT relief.

PETITION DENIED IN PART, GRANTED AND REMANDED IN

PART. The parties shall bear their own costs.