Luis Polanco-Hernandez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2019
• Docket: 18-70638
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS EMILIO POLANCO-HERNANDEZ, No. 18-70638

Petitioner, Agency No. A200-629-924

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Luis Emilio Polanco-Hernandez, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

* 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). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review questions

of law de novo, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to

the extent that deference is owed to the BIA’s interpretation of the governing

statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).

We review for substantial evidence the agency’s factual findings. Garcia-Milian v.

Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We dismiss in part and deny in part

the petition for review.

We lack jurisdiction to consider Polanco-Hernandez’s contentions regarding

his political opinion and the timeliness of his asylum application because he failed

to raise them below. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)

(court lacks jurisdiction to review claims not presented to the agency).

As to withholding of removal, substantial evidence supports the agency’s

determination that the threats Polanco-Hernandez received from gang members in

1999 and 2000 did not rise to the level of persecution. See Lim v. INS, 224 F.3d

929, 936 (9th Cir. 2000) (“Threats standing alone . . . constitute past persecution in

only a small category of cases, and only when the threats are so menacing as to

cause significant actual ‘suffering or harm.’”); Nahrvani v. Gonzales, 399 F.3d

1148, 1153-54 (9th Cir. 2005) (record did not compel the conclusion that

2 18-70638 petitioner’s past harm constituted persecution).

The agency did not err in finding that Polanco-Hernandez failed to establish

membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,

1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group,

“[t]he applicant must ‘establish that the group is (1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question’” (quoting Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence supports the agency’s

determination that, even if Polanco-Hernandez stated a cognizable social group of

family members as landowners, he failed to establish a fear of future persecution

on account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th

Cir. 2011) (even if membership in a particular social group is established, an

applicant must still show that “persecution was or will be on account of his

membership in such group” (emphasis in original)). Thus, Polanco-Hernandez’s

withholding of removal claim fails.

Substantial evidence supports the agency’s denial of CAT relief because

Polanco-Hernandez failed to show it is more likely than not he would be tortured

by or with the consent or acquiescence of the government of Guatemala. See Aden

3 18-70638 v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject Polanco-Hernandez’s contentions regarding his credibility and

that the agency did not consider his evidence.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

4 18-70638