Christian Munoz-Mejia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2021
• Docket: 20-72598
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTIAN MOISES MUNOZ-MEJIA, No. 20-72598

Petitioner, Agency No. A088-523-512

v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of a Final Order of the Department of Homeland Security

Submitted June 10, 2021** Seattle, Washington

Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.

Christian Moises Munoz-Mejia, a native and citizen of Honduras, first

entered the United States without authorization in August 2007 and was removed

* 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. to Honduras four months later. Munoz-Mejia then illegally reentered the United

States in March 2012 and, in July 2020, the Department of Homeland Security

reinstated its prior order of removal. He now petitions for review of an

immigration judge’s (IJ’s) determination under 8 C.F.R. § 1208.31(a) that Munoz-

Mejia did not have a reasonable fear of persecution or torture in Honduras and thus

is not entitled to relief from the reinstated removal order.

Substantial evidence and controlling caselaw support the IJ’s determination

that Munoz-Mejia failed to establish a reasonable possibility of persecution in

Honduras on account of a protected ground. See Alvarado-Herrera v. Garland,

993 F.3d 1187, 1196 (9th Cir. 2021) (holding that the petitioner failed to establish

that harm would occur on “account of” one of the five protected grounds). Munoz-

Mejia alleges two protected grounds: religion and membership in the group

defined as “young Honduran males who resist gang recruitment.”

As for religion, the record does not support Munoz-Mejia’s argument that he

has demonstrated a reasonable possibility of persecution because of his Christian

faith. Although members of a gang insulted Munoz-Mejia’s faith, they did so only

after they asked him to join them. The gang members, moreover, did not ever

harm or threaten to harm Munoz-Mejia.

As to Munoz-Mejia’s broadly defined social group, “[a]n alien’s desire to be

free from harassment by criminals motivated by theft or random violence by gang

2 20-72598 members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46

(9th Cir. 2008) (holding that “young men in El Salvador resisting gang violence”

did not constitute a social group because the group was too loosely defined to meet

the particularity requirement and because it lacked social visibility), abrogated on

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

banc).

Munoz-Mejia attempts to differentiate his case from controlling caselaw by

arguing that the gangs in his case were particularly “persisten[t]” in their desire to

recruit him. Such an observation, however, is immaterial because Munoz-Mejia

fails to link the persistence of the gangs’ forceful recruitment to their motivation

for recruitment. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (explaining

that because motive is “critical” to a finding of persecution, the petitioner “must

provide some evidence of it, direct or circumstantial”) (emphasis in original); see

also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (noting that

the petitioner must show that “persecution was or will be on account of his

membership in such [a protected] group”) (emphasis in original).

Substantial evidence and controlling caselaw also support the IJ’s decision

that, because Munoz-Mejia failed to “indicat[e] [that he] would be harmed by

police or government,” Munoz-Mejia did not demonstrate a reasonable possibility

3 20-72598 of torture in Honduras. The applicable regulations mandate that torture, for

purposes of relief under the Convention Against Torture, must be “inflicted by or

at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” 8 C.F.R. §§ 208.18(a)(1), 1208.18(a)(1).

Munoz-Mejia does not argue that state actors inflicted, instigated, or consented to

the harm that he experienced. He instead contends that “the police were either

unable or unwilling to stop the torture he was suffering at the hands of the gang

members.”

Public officials indeed “acquiesce” in torture if they: “(1) have awareness of

the activity (or consciously close their eyes to the fact it is going on); and

(2) breach their legal responsibility to intervene to prevent the activity because

they are unable or unwilling to oppose it.” Garcia–Milian v. Holder, 755 F.3d

1026, 1034 (9th Cir. 2014). But Munoz-Mejia failed to provide any specific

examples of the police being alerted to and refusing to investigate gang-related

reports—filed by either himself or others—and further admitted that he had never

heard of police working with gangs, such as by receiving money from gangs or by

refusing to arrest a gang member.

Munoz-Mejia instead claims that he heard from mothers in his neighborhood

that police “don’t do anything” after people file reports. Such broad allegations,

however, are not sufficient for this court to reverse the IJ’s determination because,

4 20-72598 “absent evidence of corruption or other inability or unwillingness to oppose

criminal organizations[,]” “evidence that a government has been generally

ineffective in preventing or investigating criminal activities [does not] raise an

inference that public officials are likely to acquiesce in torture.” Id.; see also

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general

ineffectiveness on the government’s part to investigate and prevent crime will not

suffice to show acquiescence.”).

The petition for review is therefore DENIED, and Munoz-Mejia’s

supplemental motion for a stay of removal is DENIED as moot.

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