Ordonez Perez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 8, 2024
• Docket: 23-94
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARWIN ANTONIO ORDONEZ PEREZ, No. 23-94 Agency No. Petitioner, A201-316-447 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 6, 2024 ** Portland, Oregon

Before: GOULD, BYBEE, and BRESS, Circuit Judges.

Darwin Antonio Ordonez Perez (Ordonez Perez), a native and citizen of El

Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision

dismissing his appeal from a decision by an Immigration Judge (IJ) denying his

* 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). applications for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). The BIA affirmed the IJ’s decisions that

Ordonez Perez’s asylum application was untimely and, even on the merits, Ordonez

Perez did not meet his burden of establishing a well-founded fear of persecution on

account of a protected ground. We have jurisdiction under 8 U.S.C. § 1252 and deny

Ordonez Perez’s petition.

“Where, as here, the BIA agrees with the IJ decision . . . we review the

decision of the BIA and those parts of the IJ’s decision upon which it relies.” Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 2019). We review the BIA’s

factual findings for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d

1051, 1059 (9th Cir. 2017) (en banc). The substantial evidence standard is

deferential, requiring reversal when, based on the record evidence, “any reasonable

adjudicator would be compelled to conclude to the contrary.” Id. (citation omitted).

1. Even assuming that Ordonez Perez’s asylum application was timely, the

denials of Ordonez Perez’s claims for asylum and withholding of removal are

supported by substantial evidence. First, the record does not compel the conclusion

that Ordonez Perez’s well-founded fear of persecution is “objectively reasonable,”

much less the conclusion that Ordonez Perez faces a “clear probability” of

2 23-94 persecution.1 Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004); Tamang v. Holder,

598 F.3d 1083, 1091 (9th Cir. 2010). “Although the persecution of family members

is highly probative,” it does not automatically “trigger a sweeping entitlement to

asylum eligibility for all members of [his] extended family.” Navas v. INS, 217 F.3d

646, 659 n.18 (9th Cir. 2000) (quoting Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir.

1999)). Instead, “the relationship that exists between the persecution of family

members and the circumstances of the applicant must be examined.” Id. Here,

Ordonez Perez has not received personal threats, and the motives of those who

inflicted harm upon his family members are unclear. Cf. Njuguna v. Ashcroft, 374

F.3d 765, 770 (9th Cir. 2004) (attacks on petitioner’s family were accompanied by

specific threats against petitioner); Cordon-Garcia v. INS, 204 F.3d 985, 992 (9th

Cir. 2000) (persecutors asked petitioner’s family about petitioner’s whereabouts).

We conclude that a reasonable adjudicator could find that Ordonez Perez’s fear of

being preemptively harmed is not objectively reasonable.

Second, the record does not compel the conclusion that Ordonez Perez’s

membership in his family would be “a reason” for his persecution, much less “one

1 Ordonez Perez concedes on this appeal that he did not suffer past persecution in

El Salvador.

3 23-94 central reason.”2 Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017).

The men who approached and killed Ordonez Perez’s brother remain unidentified,

and their motives are unknown. Santos-Ponce, 987 F.3d at 890. Similarly, the

individuals extorting Perez’s family are anonymous, and the record does not

establish that they are “motivated by anything other than an economic interest” in

receiving payments. Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1019 (9th Cir.

2023) (citation omitted). Moreover, Ordonez Perez’s other sisters have not been

harmed or threatened following their brother’s murder. Cf. Mgoian, 184 F.3d at

1036. It is possible that the tragic events suffered by Ordonez Perez’s family are

connected. But without more evidence, Ordonez Perez’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.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010).

2. Because substantial evidence supports the conclusion that Ordonez Perez

has not demonstrated a “clear probability” of future persecution under his

withholding of removal claim, we similarly reject Ordonez Perez’s claim for CAT

2 Because the record does not compel a nexus finding, we do not reach the issue of

whether the particular social group of Ordonez Perez’s family is cognizable. Santos- Ponce v. Wilkinson, 987 F.3d 886, 891 n.3 (9th Cir. 2021).

4 23-94 protection. Tamang, 598 F.3d at 1095. The record does not compel a finding of

likely future torture in the proposed country of removal.

PETITION DENIED.

5 23-94