Jorge Garcia Herrarte v. William Barr

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 24 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE DAVID GARCIA HERRARTE, No. 18-71356 AKA Jorge David Garcia, Agency No. A208-836-651 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted November 20, 2020** Pasadena, California

Before: LINN,*** RAWLINSON, and HUNSAKER, Circuit Judges.

Garcia-Herrarte, a native and citizen of Guatemala, petitions for review of a

Board of Immigration Appeals (“Board”) decision dismissing his appeal seeking

* 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 Richard Linn, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. withholding of removal and protection under the Convention Against Torture. We

deny Garcia-Herrarte’s petition.

Garcia-Herrarte argues that he suffered prior persecution based on an

attempted kidnapping when he was three or four years old because of his

membership in the well-known Garcia family. This court “characterizes persecution

as an extreme concept, marked by the infliction of suffering or harm in a way

regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc)

(internal quotation omitted). The Board found that the attempted kidnapping of

Garcia-Herrarte as a child “did not rise to the level of persecution,” ER3, and

affirmed and adopted the decision of the Immigration Judge (“IJ”) that Garcia-

Herrarte “did not experience any physical or lasting harm,” AR44. Substantial

evidence supports these findings. See 8 U.S.C. § 1231(b)(3)(A).

Substantial evidence also supports the Board’s finding that Garcia-Herrarte

failed to establish that he more likely than not would suffer future persecution based

on his membership in one of three particular social groups. First, Garcia-Herrarte

asserts membership in the particular social group of the Garcia family, citing the

murder of two of his cousins and his father’s testimony about threats to Garcia family

members due to their prominence in Santa Lucia Los Ocotes. Substantial evidence

supports the Board’s decision that Garcia-Herrarte’s cousins were victims of

generalized crime based on their perceived wealth, not due to membership in the

2 Garcia family. See AR128–31 (testimony that he did not know the reason for their

murder); AR167-77 (testimony that they were killed for failing to pay extortions).

Moreover, as the Board and the IJ noted, Garcia-Herrarte’s claim of likely future

persecution due to membership in the Garcia family is undermined by fact that 200–

300 members of the Garcia family safely live in Santa Lucia Los Ocotes. See

Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (“[P]etitioner’s fear of future

persecution is weakened, even undercut, when similarly-situated family members

living in the petitioner’s home country are not harmed.” (internal quotation marks

omitted)). The isolated statements by Garcia-Herrarte and his father identifying

family membership itself as the reason for some of the harm do not overcome the

substantial evidence in support of the Board’s determination.

Next, Garcia-Herrarte asserts membership in the particular social group of

those with tattoos. The Board did not err in determining that having tattoos has not

been shown to be perceived as a particular social group marked for persecution by

Guatemalan society. See Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir. 2007)

(holding that an individual having tattoos is not part of a sufficiently particular social

group).

Finally, Garcia-Herrarte asserts membership in the particular social group of

“wealthy returning Americans.” The IJ reasonably held that this group fails to meet

the particularity requirement needed to constitute a cognizable social group. See

3 Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152-53 (9th Cir. 2010) (holding that

Mexicans returning from America is not a cognizable social group); Ramirez-Munoz

v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (holding that “imputed wealthy

Americans” is not a cognizable group).

Garcia-Herrarte’s withholding claim also fails because his argument that he

fears harm from the government or by individuals or a group the government is

unwilling or unable to control is belied by the substantial evidence of police response

to criminal activity and investigation of violent crimes generally and the prosecution

and conviction of an individual who murdered of a member of the Garcia family in

particular.

Garcia-Herrarte’s arguments with respect to the Convention Against Torture

are based on the same facts asserted with respect to past and future persecution.

Substantial evidence supports the IJ’s finding that Garcia-Herrarte’s attempted

kidnapping was not torture. 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form

of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment.”). Substantial evidence also supports the IJ’s

finding that Garcia-Herrarte has not shown that public officials would acquiesce or

consent to future harm directed at him. The Board correctly concluded that Garcia-

Herrarte is not eligible for protection under the Convention Against Torture.

PETITION FOR REVIEW DENIED