Hernandez Gomez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2023
• Docket: 21-111
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Gilber Miguel Hernandez Gomez, No. 21-111

Petitioner, Agency No. A200-952-534

v. MEMORANDUM* Merrick B. Garland, Attorney General,

Respondent.

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

Submitted March 6, 2023** Pasadena, California

Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.

Gilber Miguel Hernandez Gomez, a citizen of El Salvador, seeks review of

the Board of Immigration Appeals’ (BIA) decision denying him withholding of

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

jurisdiction under 8 U.S.C. § 1252(a), see Ortiz-Alfaro v. Holder, 694 F.3d 955,

957 (9th Cir. 2012), and we deny the petition.

* 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). Where, as here, the BIA adopts the Immigration Judge’s (IJ) reasoning in

addition to providing its own, we review both decisions. Hernandez v. Garland,

47 F.4th 908, 912 (9th Cir. 2022).

1. Withholding of Removal. Hernandez Gomez fails to make any

specific argument challenging the agency’s determination that his tattoo-based

particular social group (PSG) fails because it is not composed of members sharing

an immutable characteristic and because it is too broadly defined. He also fails to

make any specific challenge to the agency’s purported lack of analysis of either

of his two PSGs or to the agency’s determination that a gang targeted him for

purely criminal motives. These issues are dispositive. See, e.g., Barbosa v. Barr,

926 F.3d 1053, 1059 (9th Cir. 2019) (stating elements for withholding of

removal); Villegas Sanchez v. Garland, 990 F.3d 1173, 1180 (9th Cir. 2021)

(stating elements for cognizable PSG); cf. Arteaga v. Mukasey, 511 F.3d 940, 945

(9th Cir. 2007) (concluding that the group “[t]attooed gang member” was

overbroad). Hernandez Gomez has therefore forfeited an effective challenge to

the agency’s withholding of removal decision. See Iraheta-Martinez v. Garland,

12 F.4th 942, 959 (9th Cir. 2021) (finding petitioner forfeited argument “by

failing to develop [it] in his opening brief”); see also Martinez-Serrano v. INS,

94 F.3d 1256, 1259 (9th Cir. 1996).

2. CAT. A reasonable adjudicator would not be compelled to conclude

that Hernandez Gomez is entitled to relief under CAT because he is likely to be

tortured upon return to El Salvador. See Ponce v. Wilkinson, 987 F.3d 886, 890–

2 91 (9th Cir. 2021). Although Hernandez Gomez alleged substantial abuse from

the Salvadoran police and a notable gang, this past harm does not rise to the level

of torture and the evidence in the aggregate does not compel the conclusion that

Hernandez Gomez faces a particularized risk of future torture. See, e.g., Ahmed

v. Keisler, 504 F.3d 1183, 1201 (9th Cir. 2007) (while evidence compelled a

finding of persecution where petitioner was taken into custody and beaten on four

occasions, it did not compel a finding of likelihood of torture); Ruiz-Colmenares

v. Garland, 25 F.4th 742, 751 (9th Cir. 2022) (finding petitioner’s evidence,

including country conditions reports, failed to show petitioner faced a

particularized risk of torture); Del Cid Marroquin v. Lynch, 823 F.3d 933, 937

(9th Cir. 2016) (holding substantial evidence supported denial of CAT relief

where petitioner failed to establish the government tortures “those with gang-

related tattoos”).1

Finally, we deny Hernandez Gomez’s motion for a stay of removal.

PETITION DENIED.

1 To the extent Hernandez Gomez argues that the agency failed to consider relevant evidence, these arguments fail as he has not “overcome the presumption” that the agency “did review the evidence.” Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir. 2000).