Epifanio Perez v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2018
• Docket: 16-73326
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EPIFANIO MARTINEZ PEREZ, No. 16-73326

Petitioner, Agency No. A070-560-143

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted May 17, 2018 Seattle, Washington

Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.

Epifanio Martinez Perez, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal of

the denial by an Immigration Judge (“IJ”) of his applications for withholding of

removal and relief under the Convention Against Torture (“CAT”). We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raymond J. Dearie, United States District Judge for the Eastern District of New York, sitting by designation. jurisdiction pursuant to 8 U.S.C. § 1252 and review the BIA’s factual findings for

substantial evidence. See Lopez-Birrueta v. Holder, 633 F.3d 1211, 1214 (9th Cir.

2011). We deny the petition for review.

1. “[A] petitioner may establish eligibility for withholding of removal (A) by

establishing a presumption of fear of future persecution based on past persecution,

or (B) through an independent showing of clear probability of future persecution.”

Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8 C.F.R.

§ 1208.16(b)(1)–(2)). Even taking Perez’s testimony as true, substantial evidence

supports the IJ’s and BIA’s finding that Perez had not established that the Mexican

government was “unable or unwilling to control” his alleged persecutors. See

Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004). When Perez reported his

fear of being falsely accused of child molestation to police officers, they assured him

that there were no charges pending against him. See Truong v. Holder, 613 F.3d

938, 941 (9th Cir. 2010) (per curiam) (“[T]he Truongs’ professed belief that the

Italian government was complicit in or unwilling to stop their harassment is

undermined by the fact that the Truongs repeatedly sought assistance from the Italian

police, who dutifully made reports after each incident and indicated that they would

investigate.”). After Perez’s grandfather allegedly threatened him, officers agreed

to place Perez in protective custody. Even assuming the truth of Perez’s contention

that a police officer then accepted a bribe to allow Perez’s grandfather and his

2 associates into the jail, Perez does not assert that the police allowed the men to harm

him. Rather, he claims officers detained them in a separate cell and then released

him well before them.

2. Perez provided country condition reports and expert testimony describing

the Mexican police as corrupt. A petitioner may “use generalized country conditions

information to show that reporting . . . activity to the police would have been futile,

or that doing so might have placed the applicant in greater danger.” Afriyie v.

Holder, 613 F.3d 924, 931 (9th Cir. 2010) (citations omitted). But, “when an

applicant attempts to report persecution to the police or request protection from

them, the authorities’ response . . . may provide powerful evidence with respect to

the government’s willingness or ability to protect the requestor.” Id.; see also

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006) (“Evidence of

background country conditions alone cannot establish that specific acts of

persecution did or did not occur.”). The BIA reasonably found that “while country

conditions reflect that there is widespread corruption among local law enforcement

in Mexico, such evidence does not negate the fact that [Perez] has sought and

received protection from local law enforcement on multiple occasions in [Mexico].”

3. Substantial evidence also supports the BIA’s finding that Perez had not

established a clear probability of future persecution as an “indigent Mexican[] with

serious and apparent mental impairment who lack[s] familial support.” Perez

3 previously received mental health treatment in Mexico, paid for by his sister.

Moreover, “an inadequate healthcare system is not persecution and is not harm

inflicted because of membership in a particular social group.” Mendoza-Alvarez v.

Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam).

4. “To qualify for CAT protection, a petitioner must show it is more likely

than not he or she would be tortured . . . by or with the acquiescence of a government

official or other person acting in an official capacity.” Tamang, 598 F.3d at 1095

(citing 8 C.F.R. §§ 208.16(c)(2), 1208.18(a)(1)). For the reasons noted above, the

record does not compel a conclusion that Perez would be tortured with the

acquiescence of a government official. See id.

DENIED.