Nelson Gonsalez Padilla v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 14, 2020
• Docket: 19-72089
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELSON SAUL GONSALEZ PADILLA, No. 19-72089

Petitioner, Agency No. A205-311-768

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

Respondent.

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

Submitted October 8, 2020** Pasadena, California

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

An immigration judge (“IJ”) ordered Nelson Saul Gonsalez Padilla removed

for being an “alien present in the United States without being admitted or paroled.”

8 U.S.C. § 1182(a)(6)(A)(i). Padilla conceded removability but unsuccessfully

sought asylum, withholding of removal, protection under the Convention Against

* 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). Torture (“CAT”), and cancellation of removal. The Board of Immigration Appeals

(“BIA”) dismissed Padilla’s appeal. We deny Padilla’s petition for review.

1. Asylum applications must be filed within one year of the alien’s

arrival to the United States. 8 U.S.C. § 1158(a)(2)(B). Padilla arrived in October

2002 but did not file an application until February 2014. Although an untimely

application can be excused if the applicant shows “changed circumstances which

materially affect [his] eligibility for asylum,” 8 U.S.C. § 1158(a)(2)(D), substantial

evidence supports the BIA’s determination that Padilla has not made that showing

here. See Al Ramahi v. Holder, 725 F.3d 1133, 1137–38 (9th Cir. 2013)

(reviewing for substantial evidence).1 The evidence relied on by Padilla simply

describes the conditions of Honduras and Guatemala and the generalized violence

those countries experience. For example, Padilla references a report of a “spike in

homicide rates” in Guatemala. But substantial evidence supports the BIA’s

conclusion that this does not represent a “material change” in conditions. Nor is

the fact that Padilla was placed into removal proceedings a “changed

circumstance,” which refers to “circumstances materially affecting the applicant’s

eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i) (emphasis added). That Padilla

1 We have jurisdiction over petitions for review of the “BIA’s application of the changed or extraordinary circumstances exception when the historical facts are undisputed.” Al Ramahi, 725 F.3d at 1138 (citing Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)). Here, the underlying facts are not in dispute.

2 claims he became more acutely aware of the fact that he might be deported after

the initiation of removal proceedings does not affect his eligibility for asylum.

2. For withholding of removal, Padilla had to demonstrate that he would

more likely than not face persecution on account of his “membership in a particular

social group.” Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017).

Substantial evidence supports the BIA’s determination that neither of Padilla’s

proposed social groups—“family members of individuals extorted by the 18th

Street gang” in Honduras and “Honduran nationals who relocate to Guatemala and

open their own business there”—are “‘sufficiently distinct that the group would be

recognized, in the society in question, as a discrete class of persons.’” Henriquez-

Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc) (quoting Matter of

S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008)); see also Diaz-Torres v. Barr, 963

F.3d 976, 980 (9th Cir. 2020) (finding relevant “[e]vidence such as country

conditions reports, expert witness testimony, and press accounts of discriminatory

laws and policies, historical animosities, and the like” to establish “distinct” group

exists).2

Substantial evidence also supports the BIA’s conclusion that any persecution

2 Padilla’s reliance on Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015), is unavailing. In Rios, we merely recognized that “family” could be the basis of a particular social group and it was error to not even consider it. 807 F.3d at 1128. Here, the BIA considered Padilla’s family-based social group and concluded he did not sufficiently establish particularity.

3 was not on account of Padilla’s membership in a proposed social group. The

evidence does not compel the conclusion that membership in these groups

motivated the gang violence Padilla experienced. Barajas-Romero, 846 F.3d at

358–59 (holding that persecution must be motivated “at least in part” by the

protected ground for withholding of removal claim). Nothing compels us to

contradict the BIA’s conclusion that Padilla was subjected to harm from “gang

violence or criminal activity.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.

2010) (“An alien’s desire to be free from harassment by criminals motivated by

theft or random violence by gang members bears no nexus to a protected

ground.”).

3. Substantial evidence also supports the BIA’s determination that, for

purposes of CAT relief, Padilla has not shown that it is “more likely than not” that

he would be “tortured if removed” to Honduras or Guatemala. Unuakhaulu v.

Gonzales, 416 F.3d 931, 939 (9th Cir. 2005). Although Padilla relies on two

beatings at the hands of gang members in Honduras and Guatemala to establish

past torture, he presents no evidence he was targeted for the beatings by gangs.

“[G]eneralized evidence of violence and crime” in the country of removal is

insufficient to establish eligibility for CAT protection. Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (finding petitioners’ generalized evidence of

violent crime “not particular” to petitioners and insufficient to establish CAT

4 eligibility).3

4. Padilla is ineligible for cancellation of removal because of his prior

conviction under California Penal Code § 273.5 for “willfully inflict[ing] corporal

injury” on his partner. See Carrillo v. Holder, 781 F.3d 1155, 1157–59 (9th Cir.

2015) (holding that Cal. Penal Code § 273.5 is categorically a “crime of domestic

violence” under 8 U.S.C. § 1227(a)(2)(E)(i)).

Padilla’s petition for review is DENIED. Padilla’s motion for a stay of

removal pending this court’s decision is DENIED as MOOT.

3 Even if he could show a likelihood of torture, substantial evidence also supports the BIA’s determination that Padilla has not shown government acquiescence, since his own evidence indicates that the police in both countries took action to investigate the crimes after he reported them. See Barajas-Romero, 846 F.3d at 363 (“CAT relief is unavailable, despite a likelihood of torture, without evidence that the police are unwilling or unable to oppose the crime, not just that they are unable to solve it[.]”).