Francisco Gutierrez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2021
• Docket: 20-71101
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCISCO JAVIER GUTIERREZ, No. 20-71101

Petitioner, Agency No. A205-464-700

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

Respondent.

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

Submitted May 12, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and MILLER, Circuit Judges.

Francisco Javier Gutierrez, a citizen of El Salvador, petitions for review of

the Board of Immigration Appeals’ dismissal of his appeal from an immigration

judge’s denial of his application for asylum, withholding of removal, and

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

* 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). under 8 U.S.C. § 1252(a)(1), and we deny the petition.

1. Substantial evidence supports the Board’s determination that the

proposed social group of “MS-13 gang members in El Salvador who leave the

gang” lacks social distinction. See Garay Reyes v. Lynch, 842 F.3d 1125, 1138 (9th

Cir. 2016) (upholding the Board’s determination that the proposed social group of

“former members of the Mara 18 gang in El Salvador who have renounced their

membership” lacked social distinction); Villegas Sanchez v. Garland, 990 F.3d

1173, 1183 (9th Cir. 2021). The record evidence does not “compel the conclusion

that Salvadoran society considers former gang members as a distinct social group,

e.g., distinct from current gang members . . . or from suspected gang members who

face discriminatory treatment and other challenges in Salvadoran society.” Garay

Reyes, 842 F.3d at 1138. And none of the evidence on which Gutierrez relies

describes the differences between MS-13 and Mara 18 as meaningful to

Salvadoran society’s perception of former members of those gangs.

2. Substantial evidence supports the Board’s no-nexus finding for

Gutierrez’s proposed social group of the “Gutierrez family in El Salvador.”

Gutierrez testified that MS-13 gang members attacked him because he tried to

defect. The timing of the attack—just three days after he told the gang he was

defecting—supports that inference. There is no evidence that his familial status

was “a reason” for the attack, let alone a “central reason.” Barajas-Romero v.

2 Lynch, 846 F.3d 351, 360 (9th Cir. 2017). The same is true for the gang’s attacks

on Gutierrez’s brother and nephew, whom the gang attacked for refusing to join.

3. Substantial evidence supports the Board’s decision to deny CAT

relief. The immigration judge considered Gutierrez’s credible testimony and

general evidence of country conditions. Gutierrez does not contend that the gang’s

past mistreatment of him amounted to torture. See 8 C.F.R. § 1208.16(c)(3)(i); see

also Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005) (“[T]orture is more

severe than persecution and the standard of proof for the CAT claim is higher than

the standard of proof for an asylum claim.”). There also is no evidence that the

local MS-13 clique that attacked Gutierrez knows his whereabouts or that the

broader MS-13 organization has any interest in him. And the country-conditions

evidence does not compel the conclusion that the gang likely would torture

Gutierrez if it located him. The evidence therefore “does not establish that any step

in this hypothetical chain of events is more likely than not to happen, let alone that

the entire chain will come together to result in the probability of torture.” Medina-

Rodriguez v. Barr, 979 F.3d 738, 751 (9th Cir. 2020) (quoting In re J-F-F-, 23 I. &

N. Dec. 912, 917–18 (A.G. 2006)).

4. The Board’s denial of CAT relief must stand even though the

immigration judge inadvertently said “Guatemala” twice instead of “El Salvador”

in denying relief. Both the immigration judge and the Board clearly understood El

3 Salvador to be the relevant country of removal. The immigration judge began his

discussion of Gutierrez’s CAT claim by recognizing that “[t]he evidence indicates

that there is considerable crime and violence in El Salvador.” In any event, “[a]ny

error committed by the [immigration judge is] rendered harmless by the Board’s

application of the correct legal standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th

Cir. 1995).

5. As Gutierrez acknowledges, recent case law forecloses his argument

that the agency lacked jurisdiction over his removal proceedings because his notice

to appear did not include the hearing location. See Aguilar Fermin v. Barr, 958

F.3d 887, 895 (9th Cir.), cert. denied, 141 S. Ct. 664 (2020); accord United States

v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021).

PETITION DENIED.