Javier Santana Ruiz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2019
• Docket: 16-70204
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAVIER SANTANA RUIZ, AKA Javier No. 16-70204 Ruiz Santana, Agency No. A088-752-099 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 13, 2019** Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,*** District Judge.

An immigration judge (“IJ”) denied Javier Santana Ruiz’s applications for

withholding of removal and relief under the Convention Against Torture (“CAT”).

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. The Board of Immigration Appeals (“BIA”) dismissed Santana’s appeal. We have

jurisdiction of Santana’s petition for review under 8 U.S.C. § 1252 and deny the

petition.

1. Substantial evidence supports the IJ’s finding that Santana failed to

establish that he had suffered past persecution in Mexico because of a protected

ground. See 8 U.S.C. § 1231(b)(3)(A). The evidence instead supported the

conclusion that Santana was the victim of “harassment by criminals motivated by

theft,” which “bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010). The BIA also correctly concluded that Santana’s

proposed social group of those persecuted by police is impermissibly circular. See

Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008) (holding that a social group

could not “be defined exclusively by the fact that its members have been subjected

to harm in the past”); Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007)

(same); see also Reyes v. Lynch, 842 F.3d 1125, 1135–36 (9th Cir. 2016) (stating

that a social group cannot be “amorphous,” and must “generally be recognizable by

other members of the community” (quoting Henriquez-Rivas v. Holder, 707 F.3d

1081, 1088-89 (9th Cir. 2013)).

2. Substantial evidence supports the IJ’s conclusion that Santana did not

establish a reasonable likelihood of torture if returned to Mexico. See 8 C.F.R.

§ 1208.16(c)(2). Santana offered no reason to believe that his assailants—whom he

2 described as motivated by pecuniary gain—would seek him out, years later, now that

he no longer operates a business. Substantial evidence also supports the IJ’s finding

that Santana could relocate to live with his family in Oaxaca, a considerable distance

from where he was attacked. See Maldonado v. Lynch, 786 F.3d 1155, 1162–64 (9th

Cir. 2015) (en banc).

PETITION DENIED