Felipe Aragon Trinidad v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2022
• Docket: 18-71244
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FELIPE E. ARAGON TRINIDAD, No. 18-71244

Petitioner, Agency No. A070-743-894

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

Respondent.

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

Submitted June 13, 2022** San Francisco, California

Before: S.R. THOMAS and GOULD, Circuit Judges, and WU,*** District Judge.

Felipe Aragon Trinidad, a native and citizen of Mexico, petitions our Court

for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing

* 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 George H. Wu, United States District Judge for the Central District of California, sitting by designation. his appeal of the Immigration Judge’s (“IJ”) denial of his application for

withholding of removal and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and review the agency’s

factual findings, including adverse credibility determinations, for substantial

evidence. Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Because the

BIA affirmed the IJ’s decision while citing Matter of Burbano, 20 I. & N. Dec.

872, 874 (BIA 1994), and adding its own analysis, we review both the IJ and BIA

decisions. Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020). We deny Aragon

Trinidad’s petition for review.

In his opening brief, Aragon Trinidad does not challenge the BIA’s

determination that he waived any challenge to the IJ’s adverse credibility

determination. We hold that he waived consideration of the adverse credibility

determination. See Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

But even absent waiver, we hold that substantial evidence supports the

agency’s denial of his application for withholding of removal. To qualify for

withholding of removal, a noncitizen must establish by a “clear probability” that

his “life or freedom would be threatened” upon return because of his “race,

religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3). The totality of the circumstances supports the agency’s

adverse credibility determination, see Alam v. Garland, 11 F.4th 1133, 1136-37

2 (9th Cir. 2021) (en banc), and Aragon Trinidad’s documentary evidence does not

compel concluding that he is entitled to withholding, see Al-Harbi v. INS, 242 F.3d

882, 890-91, 894 (9th Cir. 2001). Aragon Trinidad contends that he has

established a clear probability that his life would be threatened (1) on account of

his membership in his family and also (2) on account of his anti-gang political

opinion.

The IJ rejected his claim of a nexus based upon his family relationship, and

the IJ’s findings are supported by substantial evidence. 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.”). Aragon Trinidad’s earlier applications for asylum do not

mention any harm based on his uncles or family relationships. Nor does the

supporting documentation Aragon Trinidad provided corroborate his claimed fear

of harm based on membership in his family. The letter from the mayor of his

hometown confirms that someone attacked Aragon Trinidad in 2016, but the

mayor said it was an “unknown person.” This document does not connect the

harm Aragon Trinidad suffered to a family relationship or anti-gang political

opinion. The second document, the letter from a paralegal, confirms that his

uncles were killed by cartel members, but it does not corroborate Aragon

Trinidad’s claim that he had an objective basis to fear harm because of these

3 murders or his family status.

The BIA also rejected his contention that he will be harmed on account of

his anti-gang political opinion because he did not provide any evidence that his

opposition to gangs was politically motivated. See Khudaverdyan v. Holder, 778

F.3d 1101, 1106 (9th Cir. 2015). In his briefing, Aragon Trinidad merely contends

that he “holds the same negative political [opinion] as his uncles regarding the

cartel” and that this political opinion was one central reason for the harm he faced.

Without any documentary support, this contention does not suffice to show that the

BIA’s finding is not supported by substantial evidence.

Withholding of removal “is not available to victims of indiscriminate

violence, unless they are singled out on account of a protected ground.” Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151, 1152 (9th Cir. 2010). The IJ’s conclusion

that Aragon Trinidad fears general violence and extortion in Mexico is supported

by substantial evidence, and fears of general violence are insufficient for

withholding of removal. Zetino, 622 F.3d at 1016.

PETITION FOR REVIEW DENIED.