Elder Pleitez Marroquin v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2021
• Docket: 20-70908
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Elder Geobany PLEITEZ MARROQUIN, No. 20-70908

Petitioner, Agency No. A070-933-790

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

Respondent.

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

Argued and Submitted November 17, 2021 Pasadena, California

Before: RAWLINSON, LEE, Circuit Judges, and KENNELLY, ** District Judge.

Elder Geobany Pleitez Marroquin (Pleitez), a native and citizen of Guatemala,

petitions this court for review of the Board of Immigration Appeals’ (BIA) decision

affirming the order of an immigration judge (IJ) denying his claims for asylum,

withholding of removal, protection under the Convention Against Torture (CAT),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. and cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We deny

Pleitez’s petition in part and dismiss in part.

Substantial evidence supports the IJ and BIA’s determination that Pleitez does

not qualify for asylum because he did not meet his burden of demonstrating past

persecution or a well-founded fear of future persecution. 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(B)(i).

In assessing past persecution, the IJ considered threats against Pleitez’s

family, his age at the time of those threats, and the murders of his family members.

These facts, however, were insufficient to show Pleitez personally experienced harm

amounting to persecution before he arrived in the United States in 1994. Critically,

Pleitez had already fled Guatemala when his grandfather was murdered. And this

Court has “not found that harm to others may substitute for harm to an applicant. . .

who was not in the country at the time he claims to have suffered past persecution.”

Tamang v. Holder, 598 F.3d 1083, 1092 (9th Cir. 2010).

In assessing future persecution, the IJ found that Pleitez’s father had safely

returned to Guatemala on several occasions and that Pleitez’s siblings lived in

Guatemala without experiencing persecution. The IJ also found that Pleitez’s fear

of future persecution stemmed from general conditions of criminal violence, which

is not a cognizable ground for asylum. See Zetino v. Holder, 622 F.3d 1007, 1016

(9th Cir. 2010). The record supports these findings.

2 Because substantial evidence supports the determination that Pleitez has not

established persecution, his claim for asylum fails, and we need not address the

nexus issues that he disputes. Furthermore, having failed to establish eligibility for

asylum, Pleitez is not eligible for withholding of removal. Zehatye v. Gonzales,

453 F.3d 1182, 1190 (9th Cir. 2006); see also Barajas-Romero v. Lynch, 846 F.3d

351, 360 (9th Cir. 2017) (“[T]he lighter standard for the strength of the nexus is

offset by the more demanding standard of proof in the withholding statute.”).

Pleitez’s claim for CAT protection fares no better. To qualify for this relief,

a noncitizen must “establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).

Pleitez’s CAT claim, however, effectively rests on a general fear of death, which

does not satisfy the “particularized threat” of torture necessary for CAT protection.

8 C.F.R. § 1208.16(c)(2); see also Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.

2005) (“[T]he standard of proof for the CAT claim is higher than the standard of

proof for an asylum claim.”).

Finally, we cannot disturb the decision below on Pleitez’s cancellation of

removal claim. The Immigration and Nationality Act limits this Court’s review of

such claims to issues of law. 8 U.S.C. § 1252(a)(2). Pleitez’s argument boils down

to the contention that the record compels a different conclusion from the one that the

IJ and BIA reached. At each turn of Pleitez’s briefs, the thrust of his argument

3 disputes various factual findings: that he could find employment in Guatemala and

support his family from abroad, that his father could support himself alone, that his

children would suffer financial hardship, that his father’s medical condition would

deteriorate, and that his children could adjust to life in Guatemala. This Court lacks

authority to reconsider the IJ’s assessment of these facts. Vilchiz-Soto v. Holder,

688 F.3d 642, 644 (9th Cir. 2012); see also Martinez-Rosas v. Gonzales, 424 F.3d

926, 930 (9th Cir. 2005) (“[T]raditional abuse of discretion challenges recast as

alleged due process violations do not constitute colorable constitutional claims that

would invoke our jurisdiction.”).

PETITION DENIED in part and DISMISSED in part.