Francisco Bernal-Garcia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 5, 2020
• Docket: 18-71856
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 5 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO BERNAL-GARCIA, No. 18-71856

Petitioner, Agency No. A205-647-803

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 2, 2020** Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Francisco Bernal-Garcia, a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from

an Immigration Judge’s (“IJ”) order denying his applications for asylum,

withholding of removal, and relief 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 panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition. We review

the denial of asylum, withholding of removal, and CAT claims for substantial

evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).

1. Substantial evidence supports the BIA’s determination that Bernal-

Garcia failed to meet his burden of establishing past persecution based on harm he

allegedly suffered by his father. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023

(9th Cir. 2010). Bernal-Garcia’s testimony that his father used to hit him as a young

child, especially when he does not personally remember the alleged abuse, and that

he once witnessed his father hit his mother, does not compel a finding that Bernal-

Garcia experienced harm rising to the level of persecution. See Lolong v. Gonzales,

484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (“We must uphold the BIA’s

determination unless ‘the evidence not only supports, but compels the conclusion

that the asylum decision was incorrect.’” (quoting Kataria v. INS, 232 F.3d 1107,

1112 (9th Cir. 2000))); Kohli v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007)

(noting that persecution “is an extreme concept that does not include every sort of

treatment our society regards as offensive” (quoting Mansour v. Ashcroft, 390 F.3d

667, 672 (9th Cir. 2004))).

2. Substantial evidence also supports the BIA’s determination that, even

assuming that Bernal-Garcia alleged membership in cognizable social groups,

Bernal-Garcia failed to meet his burden to establish a reasonable fear of future

2 persecution based on his family membership and on his membership in the proposed

social group Bernal-Garcia describes as “young, Mexican males in a conscriptive

relationship that they are unable to leave.” This second social group is based on

Bernal-Garcia’s fear of recruitment by drug cartels.

As to Bernal-Garcia’s proposed social group based on family membership,

Bernal-Garcia testified that he feared retribution by people in Mexico who had been

harmed by Bernal-Garcia’s father. However, Petitioner also testified that his

paternal grandparents and uncles continue to live in Mexico unharmed, undermining

his fear of future harm on this basis. See Santos-Lemus v. Mukasey, 542 F.3d 738,

743 (9th Cir. 2008) (“Where the claimed group membership is the family, a family

member’s continuing safety is an even more persuasive factor in considering a

petitioner’s well-founded fear.”), abrogated on other grounds by Henriquez-Rivas

v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

As to Bernal-Garcia’s other proposed social group, Bernal-Garcia testified

that no one in Mexico, other than his father, treated him poorly, and he specifically

denied personally having any contact with Mexican gangs or cartels. See Delgado-

Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (“Asylum is not available to

victims of indiscriminate violence, unless they are singled out on account of a

protected ground.”). Bernal-Garcia argues that this proposed social group is similar

to that in Matter of A-R-C-G-, 26 I & N Dec. 388, 388 (BIA 2014) (holding that

3 “married women in Guatemala who are unable to leave their relationship”

constituted a cognizable particular social group). That argument is unpersuasive, as

Bernal-Garcia’s proposed social group is based on his fear of generalized violence

by drug cartels, which this Court has held bears no nexus to a protected ground.1 See

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[A] desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.”).

The applications for asylum and withholding of removal were therefore

correctly denied. See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010)

(noting that the standard for withholding of removal is “more stringent” than the

standard for asylum).

3. Finally, the agency did not err when it determined that Bernal-Garcia

did not establish that he will more likely than not be tortured upon returning to

Mexico. Without more than generalized claims of violence, Bernal-Garcia cannot

meet his burden. See Delgado-Ortiz, 600 F.3d at 1152 (“[G]eneralized evidence of

violence and crime in Mexico . . . is insufficient to meet [the CAT] standard.”).

Therefore, the agency’s decision that Bernal-Garcia failed to show that he is entitled

to CAT protection is also supported by substantial evidence.

1 Matter of A-R-C-G- was overruled by Matter of A-B-, 27 I & N Dec. 316 (AG 2018) shortly after the BIA’s decision in this case.

4 PETITION DENIED.