Hernandez-Yanez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2024
• Docket: 23-589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RODOLFO HERNANDEZ-YANEZ, No. 23-589 Agency No. Petitioner, A205-157-239 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 2, 2024** Phoenix, Arizona

Before: CLIFTON, BYBEE, and BADE, Circuit Judges.

Rodolfo Hernandez-Yanez, a native and citizen of Mexico, seeks review of

the Board of Immigration Appeals’ (BIA) decision affirming an Immigration

Judge’s (IJ) denial of withholding of removal and relief under the Convention

* 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). Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a)(1) to

review the final order of removal.1 “We review the denial of . . . withholding of

removal and CAT claims for substantial evidence,” and “we must uphold the

agency determination unless the evidence compels a contrary conclusion.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We deny the petition.

1. Substantial evidence supports the agency’s determination that

Hernandez-Yanez was not eligible for statutory withholding of removal. See

8 U.S.C. § 1231(b)(3); Barajas-Romero v. Lynch, 846 F.3d 351, 356 & n.2

(9th Cir. 2017).

With regard to past persecution, Hernandez-Yanez conceded that he was

never physically harmed in Mexico. Rather, he stated that he was psychologically

harmed by “two or three” in-person threats in 1994 or 1995, and later, by

anonymous threats over the phone in 2016 while he was in the United States. But

no record evidence suggests that the threats in 1994 or 1995 related to the

telephonic threats in 2016. Moreover, the unknown callers have not contacted him

since the 2016 incident. See Duran-Rodriguez, 918 F.3d at 1028 (“We have been

most likely to find persecution where threats are repeated, specific and ‘combined

1 Because the BIA adopted and affirmed the IJ’s decision, citing Matter of Burbano, 20 I&N Dec. 872, 874 (B.I.A. 1994), we “look through the BIA’s decision and treat the IJ’s decision as the final agency decision for purposes of this appeal.” Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).

2 23-589 with confrontation or other mistreatment.’” (quoting Lim v. INS, 224 F.3d 929, 936

(9th Cir. 2000))). Consequently, the record does not compel a conclusion contrary

to the agency’s determination that these threats failed to establish past persecution.

See 8 C.F.R. § 1208.16(b)(1); Duran-Rodriguez, 918 F.3d at 1028 (“[C]ases with

threats alone, particularly anonymous or vague ones, rarely constitute

persecution.”); Lim, 224 F.3d at 936 (“Threats standing alone, however, constitute

past persecution in only a small category of cases, and only when the threats are so

menacing as to cause significant actual ‘suffering or harm.’” (quoting Sangha v.

INS, 103 F.3d 1482, 1487 (9th Cir. 1997))).

Substantial evidence also supports the determination that Hernandez-Yanez

did not establish a clear likelihood of future persecution on account of a protected

ground. See 8 C.F.R. § 1208.16(b)(2); Duran-Rodriguez, 918 F.3d at 1029.

Hernandez-Yanez claims membership in two proposed particular social groups of

“imputed witnesses to cartel criminal activity” and “the Hernandez-Yanez

Family.”

First, substantial evidence supports the agency’s conclusion that “imputed

witnesses to cartel criminal activity” is not a cognizable social group. See Conde

Quevedo v. Barr, 947 F.3d 1238, 1242–43 (9th Cir. 2020). The record contains

only general evidence about witness protection programs available in Mexico.

That evidence neither discusses individuals who are imputed witnesses to criminal

3 23-589 activity, nor does it assert that Mexican society recognizes imputed witnesses as a

distinct group. See id. at 1243. Additionally, Hernandez-Yanez’s testimony that

he believed he was threatened by cartel members because they thought he reported

on them “shows only individual retaliation, not persecution on account of

membership in a distinct social group.” Id.

Second, the agency did not err in finding that Hernandez-Yanez failed to

establish a nexus between the harm he fears and his membership in “the

Hernandez-Yanez Family.” Substantial evidence shows that although Hernandez-

Yanez’s family members have been victims to various crimes in Mexico, the

incidents do not appear to be related to each other or motivated by each

individual’s membership in the Hernandez-Yanez Family. See Zetino v. Holder,

622 F.3d 1007, 1016 (9th Cir. 2010). Nor does the record compel the conclusion

that the threats made against Hernandez-Yanez were motivated by his family

membership. In sum, the record does not compel a conclusion contrary to the

agency’s determination that Hernandez-Yanez is ineligible for withholding of

removal. See B.R. v. Garland, 26 F.4th 827, 835 (9th Cir. 2022) (“[U]nder the

extremely deferential substantial-evidence standard . . . we treat [factual] findings

as conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” (internal quotation marks and citation omitted)).

2. Substantial evidence also supports the agency’s denial of CAT relief.

4 23-589 The agency reasonably found that Hernandez-Yanez failed to establish that he

would face a particularized threat of torture by or with the acquiescence of a

government official. See id. at 844. Hernandez-Yanez testified that he believed

police agencies protected individuals involved in organized crime. But he also

stated he believed that the Mexican government would “take action” against a

corrupt police officer because assisting cartels is illegal in Mexico. And although

Hernandez-Yanez provided reports of violent conditions in Mexico, “[g]eneralized

evidence of violence in a country is itself insufficient to establish that anyone in

the government would acquiesce to a petitioner’s torture.” Id. at 845.

3. Finally, Hernandez-Yanez argues that the agency violated his due

process rights by failing to consider “key testimony and evidence in the record.”

Hernandez-Yanez fails to offer any evidence showing that the agency overlooked

parts of the record, so the due process argument fails. Larita-Martinez v. INS,

220 F.3d 1092, 1095–96 (9th Cir. 2000) (“[A]n alien attempting to establish that

the Board violated his right to due process by failing to consider relevant evidence

must overcome the presumption that it did review the evidence.”).

PETITION DENIED.

5 23-589