Isidro Revuelta Revuelta v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2020
• Docket: 17-72258
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ISIDRO REVUELTA REVUELTA, No. 17-72258

Petitioner, Agency No. A077-419-449

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

Respondent.

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

Submitted March 4, 2020** San Francisco, California

Before: SILER,*** WARDLAW, and M. SMITH, Circuit Judges.

Isidro Revuelta Revuelta (“Revuelta”) petitions for review of an order of the

Board of Immigration Appeals (“BIA”) and moves for remand to the Executive

Office of Immigration Review (“EOIR”). We have jurisdiction pursuant to 8 U.S.C.

* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. § 1252. We deny the petition for review because the Immigration Judge’s (“IJ”) and

BIA’s decisions denying asylum and withholding of removal are supported by

substantial evidence. See Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.

2011) (explaining the standard of review). We also deny the motion to remand based

on Pereira v. Sessions because Revuelta’s argument is foreclosed by Ninth Circuit

precedent.

Revuelta claims that he is entitled to asylum because he has demonstrated that

he cannot return to Mexico “because of persecution or a well-founded fear of

persecution on account of . . . membership in particular [] social group[s].” See 8

U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A).

To establish past persecution, Revuelta must show “(1) an incident, or

incidents, that rise to the level of persecution; (2) that is on account of one of the

statutorily-protected grounds; and (3) is committed by the government or forces the

government is either unable or unwilling to control.” Navas v. INS, 217 F.3d 646,

655-56 (9th Cir. 2000).

Here, the IJ’s and BIA’s decisions concluding that Revuelta failed to show

past persecution on account of one of the statutorily-protected grounds are supported

by substantial evidence.

In 2013, while in Michoacán, Mexico to repair and sell two properties he

owned, Revuelta claims that he was abducted by four or five armed men, members

2 17-72258 of a cartel called the Knights Templar. He testified that these men took him to a

warehouse where there were many people. The armed men instructed him to sign a

form that he understood was to assign rights to one of his properties to the cartel.

While at the warehouse, Revuelta witnessed another man being beaten but was not

physically harmed himself and left on foot.

Subsequently, Revuelta received a telephone call instructing him to go to a

car wash. He complied and testified that he met two unknown men at the car wash.

During this incident, Revuelta overheard a telephone conversation between one of

the unknown men and his “commander.” Revuelta testified that he heard the

commander clearly instruct the man at the car wash to kill Revuelta. Even so,

Revuelta left unharmed. Finally, in his declaration, Revuelta stated that the Knights

Templar called him and threatened to kill him if he did not give them 35% of the

proceeds from the sale of his second property.

The IJ and BIA correctly concluded that this conduct did not constitute

persecution. These two incidents are not the type of offensive conduct that qualifies

as persecution. There is no credible evidence that Revuelta was physically harmed

as a result of either incident. Additionally, there is no evidence that the unknown

men who met Revuelta at the car wash were associated with the armed men who

abducted and extorted Revuelta.

3 17-72258 Of course, threats and economic persecution may constitute persecution even

if an applicant has not been physically harmed. See Baballah v. Ashcroft, 367 F.3d

1067, 1072-74 (9th Cir. 2004). Still, there is no evidence in this case, unlike the

situation in Baballah, that demonstrates relentless harassment or attacks that would

support a finding of past persecution.

Moreover, Revuelta’s argument that the IJ and BIA failed to give the proper

weight to the events of his childhood is unavailing. The IJ specifically considered

the deaths of Revuelta’s brothers. And evidence of Revuelta’s difficult childhood is

well-established in the record. In any event, Revuelta’s return trips to Mexico

undermine any claimed past persecution occurring before 2012. See Loho v.

Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008).

The IJ and BIA also properly held that Revuelta failed to demonstrate that he

was persecuted “on account of” or “because of” his membership in particular social

groups. 8 U.S.C. § 1101(a)(42)(A); INS v. Elias-Zacarias, 502 U.S. 478, 482-83

(1992); Parussimova v. Mukasey, 555 F.3d 734, 739-42 (9th Cir. 2009).

First, there is no evidence that Revuelta’s brothers were killed based on family

membership. While tragic, the evidence suggests that these events were unrelated

to each other and to family membership. Second, there is an insufficient nexus

between Revuelta’s status as a property owner who defied extortion and the harm he

suffered in 2013.

4 17-72258 Revuelta also failed to establish an objectively reasonable fear of future

persecution. Cf. Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004). The IJ and

BIA recognized the pervasiveness of violence in Michoacán. Even so, the BIA

correctly noted that Revuelta “did not establish that his fear of gangs differs from

the general threat of criminal harm affecting the entire country.” See Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

Additionally, the IJ conducted a proper individualized analysis and

determined that Revuelta could reasonably and safely relocate to another region in

Mexico. See Singh v. Whitaker, 914 F.3d 654, 659-61 (9th Cir. 2019).

Revuelta failed to establish entitlement to humanitarian asylum because he

has neither demonstrated that he suffered past persecution nor established a

reasonable possibility that he may suffer other serious harm upon removal to

Mexico. See 8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B); see also Hanna v. Keisler, 506

F.3d 933, 939 (9th Cir. 2007).

The BIA did not err in finding that Revuelta’s withholding of removal claim

falls with his asylum claim. 8 C.F.R. § 1208.16(b)(2); see also Ghaly v. INS, 58

F.3d 1425, 1429 (9th Cir. 1995).

Lastly, we do not reach the merits of Revuelta’s challenge to denial of

Convention Against Torture (“CAT”) protection because he failed to exhaust the

5 17-72258 claim by not raising it in his brief to the BIA. See Barron v. Ashcroft, 358 F.3d 674,

678 (9th Cir. 2004).

In sum, the record demonstrates that Revuelta had a difficult childhood, was

faced with family tragedies, and fell victim to indiscriminate criminal conduct in a

particularly dangerous area of Mexico. This evidence does not compel a finding

contrary to the decisions of the IJ and BIA denying asylum. Accordingly, the

petition for review is denied.

Revuelta has also moved to remand to the EOIR based on Pereira v. Sessions,

138 S. Ct. 2105 (2018)—arguing that the IJ lacked jurisdiction because the initial

notice to appear lacked the date, time, and location of his hearing. But this court has

considered and rejected an identical argument on the merits. Karingithi v. Whitaker,

913 F.3d 1158, 1159-62 (9th Cir. 2019). As a result, the motion to remand is denied.

The petition for review and motion to remand are DENIED.

6 17-72258