Juan De La Rosa-Trinidad v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2020
• Docket: 17-71147
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN DE LA ROSA-TRINIDAD, AKA No. 17-71147 Aldolfo Delarosa, Agency No. A098-251-813 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 13, 2020** San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,*** District Judge.

An Immigration Judge (“IJ”) denied Petitioner’s application for withholding

of removal, and the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s

* 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 Stephen Joseph Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. appeal. Petitioner now seeks review of the BIA decision. Petitioner’s basis for

seeking withholding is race-based persecution. He alleges that he has been

persecuted as an Afro-Mexican and that he fears continuing persecution if he

returns to Mexico. We have jurisdiction under 8 U.S.C. § 1252, and we review the

BIA decision under a substantial evidence standard. Al-Harbi v. INS, 242 F.3d 882,

888 (9th Cir. 2001).

We find that substantial evidence supports the BIA decision and deny the

petition for review. Petitioner failed to establish that the past discrimination he

experienced in Mexico amounted to persecution. He testified to several instances

of discrimination, including one when he was jailed over a weekend without food

or water while police investigated his citizenship—although other jailed prisoners,

who were not Afro-Mexican and allegedly committed various other crimes, were

treated the same way. He also testified he was repeatedly questioned by police

about his nationality and forced to sing the Mexican national anthem to prove his

nationality when he travelled from his hometown to Mexico City. He admitted that

his cousin, who was also Afro-Mexican but had a slightly lighter complexion, was

not questioned as much “because he had his electoral ID with him” while

Petitioner was a minor and did not have an electoral ID.

Those instances of discrimination against Petitioner by the Mexican

government, while unfortunate and inexcusable, do not compel a finding of past

2 persecution. See Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (finding that

a five or six-day imprisonment, without mistreatment, did not constitute

persecution); Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir. 2000) (repeated

questioning by police did not constitute persecution).

The other instances of discrimination that Petitioner suffered—bullying in

school, being chased by a group of men in Mexico City, a low wage at his

hometown job, and trouble finding work in Mexico City—cannot constitute

persecution for purposes of withholding because they were not committed by the

Mexican government or persons whom Petitioner demonstrated the Mexican

government was unwilling or unable to control. Mansour v. Ashcroft, 390 F.3d

667, 672 (9th Cir. 2004) (quoting Singh v. INS, 134 F.3d 962, 967 n.9 (9th Cir.

1998)).

Further, Petitioner’s articles about widespread discrimination against

Afro-Mexicans in Mexico do not demonstrate, much less compel, a finding that “it

is ‘more likely than not’ that [he] would be subject to persecution on account of

one of the protected grounds” if deported to Mexico. Tamang v. Holder, 598 F.3d

1083, 1091 (9th Cir. 2010) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 429

(1987)). His fear of future persecution is undermined by his family’s continued

safe presence in Mexico. Tamang, 598 F.3d at 1094 (quoting Sinha v. Holder, 564

F.3d 1015, 1022 (9th Cir. 2009)).

3 PETITION FOR REVIEW DENIED.