Martinez Gomez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 7, 2023
• Docket: 21-662
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR ARCIDES MARTINEZ GOMEZ, No. 21-662 Agency No. Petitioner, A095-058-283 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2023** San Francisco, California

Before: S.R. THOMAS and BRESS, Circuit Judges, and EZRA, District Judge.***

Oscar Arcides Martinez Gomez (“Petitioner”), a native and citizen of

Honduras with citizenship in El Salvador and refugee and permanent resident status

* 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. in Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”)

decision dismissing his appeal of an Immigration Judge’s (the “IJ”) denial of his

applications for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). As the parties are familiar with the facts, we do not

recount them here.

We have jurisdiction under 8 U.S.C. § 1252. The BIA’s decision that

Petitioner did not establish eligibility for asylum is reviewed for substantial

evidence. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). The BIA’s

determination must be upheld if supported by reasonable, substantial, and probative

evidence in the record. Lopez v. Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004).

Additionally, we review the agency’s factual findings for substantial evidence.

Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). Under the deferential

substantial evidence standard, unless the evidence compels a conclusion otherwise,

we must uphold the agency’s decision. Duran-Rodriguez v. Barr, 918 F.3d 1025,

1028 (9th Cir. 2019).

1. Substantial evidence supports the agency’s determination that MS-13

targeted Petitioner based on personal animosity rather than political motive.

Petitioner did not establish that MS-13 members were aware of his “belief in the rule

of law” or targeted him on this basis. Although a political opinion can be expressed

through actions when society would naturally attribute certain political opinions to

2 21-662 the petitioner based on his action, Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1017

(9th Cir. 2023), the record does not establish that the relevant societies would

naturally attribute “belief in the rule of law” to the act of refusing extortion demands.

Rather, there are logical non-political explanations for resistance to extortion, such

as financial inability to pay or a desire to retain one’s hard-earned wages. See id. at

1017–18 (finding that refusal to hand over money to criminals could be explained

by a desire to avoid becoming the victim of a crime); see also I.N.S. v. Elias-

Zacarias, 502 U.S. 478, 481–82 (1992), superseded by statute on other grounds, 8

U.S.C. § 1252(b)(4)(B) (finding that resistance to guerilla recruitment could be

explained by “fear of combat, a desire to remain with one’s family and friends, a

desire to earn a better living in civilian life, to mention only a few”).

Petitioner argues that declining to accede to extortion demands can express a

political opinion. See Desir v. Ilchert, 840 F.2d 723, 728–29 (9th Cir. 1988). But in

the relevant society in Desir—Haitian kleptocracy enforced by the Ton Ton

Macoutes—the “[r]efusal to comply with extortionate demands resulted in the

attribution of anti-government sympathies . . . .” Id. at 727. The record does not

compel the same conclusion on the facts of this case. Instead, substantial evidence

supports the BIA’s determination that Petitioner was the unfortunate victim of

generalized gang violence.

3 21-662 Petitioner further argues the IJ and BIA erred by not conducting a mixed

motive analysis. However, the IJ did not have to conduct a mixed-motive analysis

when Petitioner failed to establish that his fears were motivated at all by his political

opinion.

2. A remand to consider Petitioner’s request for humanitarian asylum is

unwarranted because Petitioner failed to establish a nexus to a protected ground.

The BIA did not err in denying humanitarian relief. To be eligible for humanitarian

asylum, “an applicant must still establish past persecution on account of a protected

ground . . . .” Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004). The BIA

did not have to assess the level of severity of the persecution felt by Petitioner

because Petitioner failed to first establish that he was persecuted based on a protected

ground.

3. The BIA did not err in determining that Petitioner failed to meaningfully

challenge the denial of asylum under CAT. Although Petitioner stated that the record

shows he is entitled to CAT relief, he did not specify which of the IJ’s findings of

fact or conclusions of law should be reversed. This was not sufficient to preserve the

issue before the BIA. See generally Rizo v. Lynch, 810 F.3d 688, 692 (9th Cir. 2016)

(holding that a petitioner does not meaningfully challenge the IJ’s finding if he does

not “apprise the BIA of the particular basis for [his] claim that the IJ erred”); 8 C.F.R.

§ 1003.3(b) (2022) (a petitioner “must specifically identify the findings of fact, the

4 21-662 conclusions of law, or both that are being challenged” to avoid summary dismissal

before the BIA).

PETITION DENIED.

5 21-662