Miranda Barrios v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2023
• Docket: 22-402
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANILO GABRIEL MIRANDA No. 22-402 BARRIOS, Agency No. A095-776-179 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 8, 2023** Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY, District Judge.***

Danilo Gabriel Miranda Barrios (“Miranda”), a native and citizen of

* 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 Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. Guatemala, petitions for review of a decision by the Board of Immigration Appeals

(“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) decision denying

his application for withholding of removal and protection under the Convention

Against Torture (“CAT”). “Where, as here, the BIA cites Burbano and also

provides its own review of the evidence and law, we review both the IJ’s and the

BIA’s decisions.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022)

(citation omitted). We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

1. Substantial evidence supports the agency’s determination that

Miranda is ineligible for withholding of removal because he did not “establish[] a

presumption of fear of future persecution based on past persecution,” nor did he

demonstrate “an independent showing of clear probability of future persecution.”

See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Although Miranda

testified that on one occasion, MS-13 members beat him and threatened to kill him

for refusing to join their gang, this was the only physical harm that Miranda

experienced while living in Guatemala and there is no evidence that he suffered

serious injury. See Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021) (“[A]

significant consideration” when determining whether a petitioner was persecuted

“is whether the petitioner was subject to significant physical violence, and,

relatedly, whether he suffered serious injuries that required medical treatment.”

2 22-402 (citation and internal quotation marks omitted)). Because this was also the only

time that the gang threatened Miranda’s life, this is not one of the “small category

of cases” where “death threats alone can constitute persecution.” Duran-Rodriguez

v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“We have been most likely to find

persecution where threats are repeated, specific and combined with confrontation

or other mistreatment.” (internal quotation marks and citations omitted)). And,

although “harm to a petitioner’s close family members or associates may be

relevant to assessing whether the petitioner suffered past persecution,” the

anonymous death threat received by Miranda’s brother and the gang’s robbery of

his mother’s gold chains may not “substitute for harm to an applicant, such as

[Miranda] in this case, who was not in the country at the time he claims to have

suffered past persecution there.” Tamang, 598 F.3d at 1091–92.

Miranda also failed to demonstrate a clear probability of future persecution

on account of his membership in the group of “Guatemalans who resist gang

violence and gang demands” because this particular social group is not legally

cognizable. We have consistently held that proposed social groups composed of

individuals who resist gang recruitment are “too loosely defined to meet the

requirements for particularity.” Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46

(9th Cir. 2008) (finding “young men in El Salvador resisting gang violence”

insufficiently particular), overruled in part by Henriquez-Rivas v. Holder, 707 F.3d

3 22-402 1081, 1093 (9th Cir. 2013); see also Ramos-Lopez v. Holder, 563 F.3d 855, 861–

62 (9th Cir. 2009), overruled in part by Henriquez-Rivas, 707 F.3d at 1093;

Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009), abrogated in part by

Henriquez-Rivas, 707 F.3d at 1093. Nor is Miranda’s proposed group socially

distinct. Despite Miranda’s reliance on country reports evidencing the

government’s efforts to combat gang violence, these reports do not show that

Guatemalan society views those who resist gang recruitment as distinct from any

other victims of crime. See Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir.

2014) (“Evidence such as country condition reports…may establish that a group

exists and is perceived as ‘distinct’ or ‘other’ in a particular society.” (citation

omitted)). Although MS-13 members may view Miranda as distinct from the rest

of his community on account of his refusal to join their gang, “recognition of a

particular social group is determined by the perception of the society in question,

rather than by the perception of the persecutor.” Rios v. Lynch, 807 F.3d 1123,

1127 (9th Cir. 2015) (citation and internal quotation marks omitted).

Therefore, because substantial evidence supports the agency’s finding that

Miranda’s life will not be “threatened in [Guatemala] because of [his]…

membership in a particular social group,” 8 U.S.C. § 1231(b)(3)(A), Miranda is

ineligible for withholding of removal.

2. Substantial evidence supports the agency’s conclusion that Miranda is

4 22-402 ineligible for protection under CAT because Miranda failed to establish that it is

more likely than not that he would be tortured in Guatemala by, or with the consent

or acquiescence of, a public official. Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir.

2020). Although the country condition reports that Miranda relies on show that

Guatemala is plagued by corruption and violence, these reports do “not indicate

that [Miranda] would face any particular threat of torture beyond that of which all

citizens of [Guatemala] are at risk.” Dhital v. Mukasey, 532 F.3d 1044, 1051–52

(9th Cir. 2008) (per curiam). These reports also show that the Guatemalan

government has taken measures to combat the country’s problems with crime and

violence. Although these attempts may have been unsuccessful, the government

“does not acquiesce in the torture of its citizens merely because it is aware of

torture but powerless to stop it.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034

(9th Cir. 2014) (as amended) (citation omitted). Therefore, Miranda has failed to

meet his burden of proving eligibility for protection under CAT.

PETITION FOR REVIEW DENIED.

5 22-402