Gerson Punay-Hernandez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2020
• Docket: 16-73439
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERSON EDUARDO PUNAY- No. 16-73439 HERNANDEZ, AKA Gerson Eduardo Hernandez, AKA Gerson Hernandez Punay, Agency No. AKA Gerson Eduardo Hernandez-Punay, A089-956-622 AKA Gerson Punay, AKA Gerson Eduardo Punay, MEMORANDUM* Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 9, 2019** Pasadena, California

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

* 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). Punay-Hernandez’s unopposed motion to submit this case on the briefs is granted. *** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. Gerson Eduardo Punay-Hernandez, a citizen and native of Guatemala,

petitions for review of the Board of Immigration Appeal’s decision affirming an

Immigration Judge’s denial of his applications for withholding of removal under

the Immigration and Naturalization Act (INA) and relief under the Convention

Against Torture (CAT). We deny the petition.

We “review for substantial evidence factual findings underlying the denial

of a withholding or CAT claim.” Flores-Vega v. Barr, 932 F.3d 878, 886 (9th Cir.

2019). We must affirm the agency’s decision “unless the evidence presented

would compel a reasonable finder of fact to reach a contrary result.” Id.1 “Where,

as here, the BIA has reviewed the IJ’s decision and incorporated portions of it as

its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.” Parada

v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018).

Punay-Hernandez sought withholding of removal based on past persecution

because of his membership in the social group of “family of gang members.”

Substantial evidence supports the agency’s conclusion that Punay-Hernandez

failed to establish that the mistreatment he experienced in Guatemala was due to

his relationship to his gang-member cousins. He acknowledged that some of those

who threatened and robbed him did not know of his cousins’ gang affiliation, and

1 We refer to the IJ and BIA collectively as “the agency.”

2 he did not offer any evidence that his brother and nephew had been murdered

because of their relationship to the cousins.

An applicant who has not established past persecution must show a

subjectively genuine and objectively reasonable fear of future persecution to be

eligible for withholding of removal. Flores-Vega, 932 F.3d at 886. Punay-

Hernandez claimed fear of future persecution because of his membership in two

groups: persons returning to Guatemala after a lengthy stay in the United States

and therefore perceived to be wealthy, and those who are relatives of gang

members. The agency correctly concluded that the first is not a cognizable social

group under the INA. See, e.g., Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir.

2019); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). And

substantial evidence supports the agency’s conclusion that Punay-Hernandez

lacked an objectively reasonable fear of future persecution because of his family

ties; his mother and sister still live in the home he left in Guatemala, and neither

has been physically harmed by gang members. Thus, the agency did not err in

denying Punay-Hernandez’s application for withholding of removal.

To qualify for relief under the CAT, Punay-Hernandez had to show that it

was “more likely than not” that he would be tortured upon removal to Guatemala.

See 8 C.F.R. § 1208.16(c)(2). Substantial evidence supports the agency’s denial of

relief based on its findings that the gang mistreatment Punay-Hernandez

3 experienced did not amount to past torture. Punay-Hernandez cited gang threats,

harassment, and shootings at his house, but he failed to provide sufficient evidence

of suffering or harm to establish torture. See 8 C.F.R. § 1208.18(a)(1) (conduct

must have inflicted severe physical or mental pain and suffering to constitute

torture). He also failed to show that the claimed conduct occurred with

government consent or acquiescence. The government’s failure to convict the

individuals who killed his brother and nephew does not establish that it acquiesced

to their murders. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

Finally, the agency properly concluded that the country conditions reports Punay-

Hernandez submitted were not sufficient to establish a likelihood of future torture,

as he did not show how the reports’ general statements about gang violence in

Guatemala are evidence of any risk of torture specific to him. See Flores-Vega,

932 F.3d at 887.

PETITION FOR REVIEW DENIED.