Efrain Gutierrez-Gutierrez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2022
• Docket: 19-71206
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 20 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EFRAIN GUTIERREZ-GUTIERREZ, No. 19-71206

Petitioner, Agency No. A215-552-920

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

Respondent.

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

Submitted January 14, 2022** Pasadena, California

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

* 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. Efrain Gutierrez-Gutierrez (Petitioner), a citizen of Honduras, petitions for

review of the denial of his application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252.1

“We review de novo the Board of Immigration Appeals’ (BIA)

determination on questions of law and mixed questions of law and fact,” but “[w]e

review for substantial evidence the BIA’s factual findings.” Conde Quevedo v.

Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020) (citations omitted).

When the BIA conducts its own review of the evidence and the law, we limit

our review to the BIA decision. See Hosseini v. Gonzales, 471 F.3d 953, 957 (9th

Cir. 2006), as amended. However, if the BIA adopts the Immigration Judge’s

decision while adding some of its own reasoning, we review both decisions. See

Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011).

1. The primary basis for Petitioner’s application for asylum and withholding

of removal is that his uncle approached him in March of 2018 with a machete and

threatened to kill him. When the Immigration Judge (IJ) asked Petitioner why his

uncle threatened him, Petitioner responded that, “it all had to do with . . . our

1 Due to our decision in Martinez v. Barr, 941 F.3d 907 (9th Cir. 2019), Respondent declined to renew the claim that the Court lacks jurisdiction over Gutierrez-Gutierrez’s prematurely filed petition. 2 economical situation . . . and also it was, I believe . . . the political system, too.”

But Petitioner’s uncle never mentioned Petitioner’s economic status or his politics

on the day he threatened Petitioner. Petitioner also described a time in 2017 when

his uncle learned that Petitioner had voted for a different party candidate, and told

Petitioner that he “should support the national party.” However, Petitioner never

demonstrated a relationship between his uncle’s 2017 comments and the threat in

2018.

When the record does not establish a connection between an event and a

protected ground, the IJ is not required to accept the petitioner’s hypothesis

regarding nexus as fact. See Ochave v. INS, 254 F.3d 859, 866 (9th Cir. 2001). In

any event, “[t]hreats standing alone . . . constitute past persecution in only a small

category of cases, and only when the threats are so menacing as to cause

significant actual suffering or harm.” Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000) (citations omitted). Petitioner testified that he never received another threat

from his uncle or anyone else and was never physically harmed or mistreated.

Accordingly, substantial evidence supports the BIA’s determination that the threat

against Gutierrez-Gutierrez did not rise to the level of persecution, and thus he was

not eligible for asylum.

3 2. Substantial evidence also supports the BIA’s determination that Petitioner

failed to establish that the government was unwilling or unable to protect him from

persecution. Petitioner testified that he never reported his uncle’s threat to the

police because of police corruption, but did not carry his burden to provide

evidence that would support his contention of corruption. See Castro-Perez v.

Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).

3. Petitioner asserted that the BIA conflated the standard for withholding

with the nexus standard for asylum. Admittedly, the standard for withholding of

removal is met if the protected ground is a reason for the persecution as opposed to

a central reason, as required for asylum. See Barajas-Romero v. Lynch, 846 F.3d

351, 360 (9th Cir. 2017). However, where the agency has found no nexus, as here,

failure to apply the “a reason” standard does not require a remand. See Singh v.

Barr, 935 F.3d 822, 827 (9th Cir. 2019).

4. Substantial evidence supports the BIA’s determination that petitioner

failed to establish a clear probability of torture by or with the acquiescence or

willful blindness of a government official. See Zheng v. Ashcroft, 332 F.3d 1186,

1194 (9th Cir. 2003) (describing standard for CAT relief). Petitioner stated that his

uncle exposed his HIV status to people throughout the town. However, the

Country Reports in the record reflect special protections designed to address HIV

4 and AIDS stigma in the country, and indicate that the government would not

acquiesce in Petitioner’s torture. See Garcia-Milian v. Holder, 755 F.3d 1026,

1035 (9th Cir. 2014), as amended.

5. Petitioner did not explicitly address in his opening brief the issue of

whether the IJ violated his right to due process based on his pro se status.

Petitioner merely stated that “[f]urther development of the record . . . may have

established the government instigation or acquiescence that the IJ deemed

lacking.” This statement does not demonstrate substantial prejudice. See Hussain

v. Garland, 985 F.3d 634, 642 (9th Cir. 2021) (“To prevail on [a due process

claim], a petitioner must . . . demonstrate substantial prejudice.”) (citation and

internal quotation marks omitted).

PETITION DENIED.