Juan Calderon-Torres v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2018
• Docket: 14-73378
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 20 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN MANUEL CALDERON-TORRES, No. 14-73378

Petitioner, Agency No. A037-581-229

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted July 11, 2018 Seattle, Washington

Before: FERNANDEZ, CLIFTON, and NGUYEN, Circuit Judges.

Juan Manuel Calderon-Torres petitions for review of an order of removal

and the denial of his applications for withholding of removal and for relief under

the Convention Against Torture. We deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Substantial evidence supported the conclusion that the harm that Calderon-

Torres suffered did not rise to the level of persecution. See Hoxha v. Ashcroft, 319

F.3d 1179, 1181–82 (9th Cir. 2003) (holding that harassment, threats, and

mistreatment since early childhood—including a confrontation resulting in facial

bruises and two broken ribs—were not so severe as to rise to the level of

persecution). Calderon-Torres asserts that his case is distinguishable from Hoxha,

but the injuries suffered by Calderon-Torres, even considered cumulatively, were

not appreciably more severe than the harm alleged in Hoxha, and the factual

distinctions that Calderon-Torres identified were irrelevant to the question of

whether the past harm rose to the level of persecution. Nor did Calderon-Torres

establish a well-founded fear that he would suffer abuse in the future that would

amount to persecution. See 8 C.F.R. 1208.16(b)(2).

The evidence did not compel a conclusion that Calderon-Torres’ proposed

particular social groups (former gang members, those perceived to be active gang

members, and those who have refused recruitment efforts by drug cartels in

Mexico) are cognizable under 8 U.S.C. § 1231(b)(3). Calderon-Torres was

required to establish with evidence that at least one of his groups was socially

distinct within Mexican society. Reyes v. Lynch, 842 F.3d 1125, 1131–32, 1136

(9th Cir. 2016); Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014). He

2 relied upon his own testimony to meet this requirement, but that testimony did not

establish how the broader Mexican society treated others within the proposed

groups. His own experience was tied to himself individually. Notably, his arrest

and detention resulted from his possession of marijuana and his refusal to tell the

police its source after the police stopped him. That experience did not establish

how society or the police treated individuals within any of the purported social

groups who have not violated the law. The evidence that Calderon-Torres

presented therefore did not establish that his groups were socially distinct within

Mexican society.

Finally, substantial evidence supported the conclusion that it was not more

likely than not that Calderon-Torres would be tortured if removed to Mexico, as

required to obtain CAT relief. The testimony that Calderon-Torres provided did

not compel the conclusion that the mistreatment that he suffered was so severe that

it rose to the “extreme form of cruel and inhuman treatment” that is torture. 8

C.F.R. § 1208.18(a); see also Khudaverdyan v. Holder, 778 F.3d 1101, 1103, 1109

n.7 (9th Cir. 2015) (holding that the BIA did not err in concluding that the harm

that the applicant suffered, including being detained, beaten, and threatened by

military police, did not rise to the level of torture).

Petition DENIED.