Noel Jimenez Mercado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2022
• Docket: 20-71511
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NOEL JIMENEZ MERCADO, AKA No. 20-71511 Fernando Tellez Barrera, Agency No. A077-751-241 Petitioner,

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 14, 2022** Pasadena, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District Judge.

Noel Jimenez Mercado, a native and citizen of Mexico, petitions this Court

* 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

appeal from the Immigration Judge’s (“IJ”) denial of his application for

withholding of removal and Convention Against Torture (“CAT”) relief. We have

jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition. Because the

parties are familiar with the history of the case, we need not recount it here.

1. Petitioner forfeited review of the agency’s denial of withholding of

removal based on his proposed particular social group of his family by failing to

challenge the BIA’s determination that this proposed particular social group was

not cognizable. Etemadi v. Garland, 12 F.4th 1013, 1026–27 (9th Cir. 2021). But

even if his claims were not forfeited, the BIA properly determined that this

proposed particular social group was not cognizable.

A “particular social group” must be “(1) composed of members who share a

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

distinct within the society in question.” Akosung v. Barr, 970 F.3d 1095, 1103 (9th

Cir. 2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).

“The BIA’s conclusion regarding social distinction—whether there is evidence that

a specific society recognizes a social group—is a question of fact that we review

for substantial evidence.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir.

2020). “To prevail under the substantial evidence standard, the petitioner ‘must

show that the evidence not only supports, but compels the conclusion that these

2 findings and decisions are erroneous.’” Plancarte Sauceda v. Garland, 23 F.4th

824, 831 (9th Cir. 2022) (quoting Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir.

2020)). The BIA’s determination that Petitioner failed to show that his family

group was socially distinct rested on the IJ’s finding that his entire family was not

targeted for harm. That finding is supported by record evidence that not all

members of Petitioner’s family received threats after his uncle’s kidnapping;

rather, the evidence showed that only witnesses to the kidnapping were threatened.

The record thus does not compel the conclusion that the BIA’s decision was

erroneous.

2. Reviewing for substantial evidence the BIA’s determination that

Petitioner is not eligible for withholding of removal, id. at 831, we agree that the

record shows he failed to establish past persecution “because of” a protected

ground, Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (citing 8

U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)).

There is no record evidence that Petitioner's family membership or political

opinion were a reason he was hit by a truck in 2011 or that his political opinion

was a reason for the kidnapping or beating by the marines. And the record does

not compel the conclusion that the interactions with officers in 2013 or the threats

received in 2014 rise to the level of persecution. See Halaim v. I.N.S., 358 F.3d

1128, 1132 (9th Cir. 2004) (determining years of derogatory comments and “a few

3 incidents” of police harassment did not compel the conclusion of persecution);

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (explaining that

two threats from “hitmen” did not compel the conclusion of persecution where

there was no corresponding violence or other indications of mistreatment).

Substantial evidence supports the BIA’s determination that Petitioner did not

establish a clear probability of future persecution based on his family membership

or political opinion. See 8 C.F.R. § 208.16(b)(2). The record evidence that other

members of Petitioner’s family received threats after his uncle’s kidnapping but

continued to live in Mexico unharmed, even after they testified at the kidnappers’

trial, supported the BIA’s conclusion that he did not demonstrate that it was more

likely than not that he would be persecuted on account of his family membership.

Similarly, the record supported the BIA’s conclusion that Petitioner did not

demonstrate a clear probability of future political persecution because his uncle,

who also supported Petitioner’s preferred candidate, had not been harmed since the

kidnapping; there was no evidence that supporters of Petitioner’s candidate were

persecuted; and the police prosecuted the kidnappers. Barrios v. Holder, 581 F.3d

849, 854 (9th Cir. 2009) (explaining that source of persecution must be a

government official or an individual or group that the government is unwilling or

unable to control), abrogated on other grounds by Henriquez-Rivas v. Holder, 707

F.3d 1081 (9th Cir. 2013) (en banc).

4 3. Substantial evidence supports the BIA’s determination that Petitioner

failed to establish a clear probability of torture by or with the acquiescence or

willful blindness of a government official. Although the agency found that

Petitioner’s interrogation and beating by marines was a harm rising to the level of

persecution, the agency properly concluded that it did not rise to the level of

torture. See Gui v. INS, 280 F.3d 1217, 1222–23, 1230 (9th Cir. 2002) (holding

that “serious” persecution including 24-hour interrogation and several-hit-and-run

car accidents “did not amount to torture”); see also Ahmed v. Keisler, 504 F.3d

1183, 1201 (9th Cir. 2007) (holding that substantial evidence supported denial of

CAT relief because petitioner’s detention and beatings on four occasions did not

“clear[ly] . . . rise to the level of torture”). And the record does not compel the

conclusion that Petitioner would be tortured upon return to Mexico because

Petitioner’s relatives who were threatened then continued to reside safely in

Mexico after his uncle’s kidnapping. Finally, we have repeatedly affirmed

findings like those in this case that generalized evidence of crime and violence in

Mexico not particular to petitioners does not meet the standard for relief under the

CAT. See, e.g., Gonzalez-Caraveo, 882 F.3d at 895. In sum, the record does not

compel the conclusion that Petitioner more likely than not will be tortured upon

return to Mexico.

PETITION FOR REVIEW DENIED.