Luis Alvarez Gutierrez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2023
• Docket: 18-71234
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS ALVAREZ GUTIERREZ, AKA Luis No. 18-71234 A. Alvarez, AKA Carlos Alberto Alvarez 18-73059 Gutierrez, AKA Carlos Gutierrez Alvarez, AKA Juan Carlos Quintero, Agency No. A095-797-327

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 7, 2023** Pasadena, California

Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.

Luis Alvarez-Gutierrez appeals the determination of an immigration judge (IJ)

* 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 Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. that he did not have a reasonable fear of persecution or torture in Mexico, his country

of origin. He also seeks review of the denial by the Board of Immigration Appeals

(BIA) of his motion to reopen proceedings in the case that led to his first removal.

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petitions for review.

Alvarez-Gutierrez illegally reentered the United States in 2009. After the

Department of Homeland Security reinstated his prior order of removal, he said that

he was afraid to return to Mexico because of gang violence and threats against his

family members there. An asylum officer determined that Alvarez-Gutierrez did not

have a reasonable fear of persecution or torture, a prerequisite for relief, and an IJ

affirmed.

1. We review for substantial evidence the IJ’s negative reasonable-fear

determination. Orozco-Lopez v. Garland, 11 F.4th 764, 774 (9th Cir. 2021). Under

this standard, we must affirm unless Alvarez-Gutierrez has shown that the evidence

compels reversal. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).

Non-citizens whose prior orders of removal have been reinstated may be

eligible for withholding of removal and relief under the Convention Against Torture

(CAT). Andrade-Garcia v. Lynch, 828 F.3d 829, 830–32 (9th Cir. 2016). Before

they may present their claims to an IJ, they must convince an asylum officer or an IJ

that they have a “reasonable fear of persecution or torture.” 8 C.F.R. § 1208.31(c),

(g). To do so, they must establish a “reasonable possibility” that they would be

2 persecuted on account of a protected ground or tortured in the country of removal.

Id. § 1208.31(c). A ten-percent chance of persecution or torture suffices, Alvarado-

Herrera v. Garland, 993 F.3d 1187, 1195, 1195 (9th Cir. 2021), but we require “a

good reason to fear future persecution based on credible, direct, and specific

evidence in the record.” Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018)

(quoting Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008)).

Non-citizens must also demonstrate that the government is responsible for the

harm that they fear, either because the government will persecute them or fail to

control those who persecute them, Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th

Cir. 2004) (withholding), or because the government will torture them or acquiesce

in their torture by others, Andrade-Garcia, 828 F.3d at 836 (CAT).

Substantial evidence supports the IJ’s conclusion that Alvarez-Gutierrez has

not made the necessary showing. Assuming (without deciding) that Alvarez-

Gutierrez’s family is cognizable as a “particular social group”—the statutory ground

upon which he relies for relief—the record does not compel the conclusion that he

reasonably fears persecution because of his family ties. Alvarez-Gutierrez testified

that he was afraid that the same people that had attacked his father would attack him,

a fear corroborated by the threats that his family reported receiving after the attack

on his father. However, he also conceded that his family stopped receiving threats

after they reported the attack to the police. This concession also makes it unlikely

3 that the Mexican government is responsible for, or will acquiesce in, the harm that

he fears, which is a requirement for relief. Alvarez-Gutierrez’s other fears—of

generalized gang violence, violence against returnees, and violence against those

perceived to be wealthy—are not cognizable under the Immigration and Nationality

Act and do not justify relief. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th

Cir. 2010) (per curiam); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir.

2016).

Nor does the evidence compel the conclusion that Alvarez-Gutierrez

reasonably fears torture in Mexico. By his own admission, the police have prevented

further harm or threats to his family. Thus, the record does not suggest that the

government is likely to torture Alvarez-Gutierrez or acquiesce in his torture by

others.

Alvarez-Gutierrez’s counterarguments are unavailing. First, he faults the IJ

for failing to determine whether his proposed particular social group was valid. But

Alvarez-Gutierrez failed to prove that his membership in that group was “a reason”

for the persecution he fears. See 8 U.S.C. § 1231(b)(3)(C). Accordingly, the IJ was

not required to assess his group’s validity. See INS v. Bagamasbad, 429 U.S. 24, 25

(1976) (“As a general rule courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results they reach.”).

Second, Alvarez-Gutierrez claims that the IJ should have addressed whether

4 the harm that his family suffered amounted to persecution. But such a determination,

too, was unnecessary, because Alvarez-Gutierrez does not argue that he suffered past

persecution and because his family members are not seeking relief.

Third, he claims that the police acquiesced in the harm to his father, which he

calls torture. But “[t]he inability to bring the criminals to justice is not evidence of

acquiescence[.]” Andrade-Garcia, 828 F.3d at 836. And there is no support in the

record for his allegation that the police—whose actions apparently prevented further

harm—had prior awareness of any torturous activity of the gangs. See ibid.

2. Alvarez-Gutierrez’s two opening briefs do not address the BIA’s denial of

his motion to reopen. This court does not ordinarily review issues not presented in

an opening brief, so we decline to review this issue. See Lopez-Vasquez v. Holder,

706 F.3d 1072, 1078–80 (9th Cir. 2013); Koerner v. Grigas, 328 F.3d 1039, 1048–

49 (9th Cir. 2003).

The petitions are DENIED.