Pedro Hernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2022
• Docket: 20-71178
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEDRO SOLEDAD HERNANDEZ, No. 20-71178

Petitioner, Agency No. A095-786-336

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

Respondent.

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

Submitted May 12, 2022** San Francisco, California *** Before: O’SCANNLAIN and BUMATAY, Circuit Judges, and BAKER, International Trade Judge.

Pedro Soledad Hernandez petitions for review of a Board of Immigration

Appeals (BIA) decision denying his applications for withholding of removal and

* 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 M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. protection under the Convention Against Torture (CAT). We have jurisdiction under

8 U.S.C. § 1252(a). We review the denial of relief under the deferential substantial

evidence standard, Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), and

deny the petition.

1. Substantial evidence supports the denial of withholding of removal. To

qualify for withholding of removal, an applicant must show a clear probability of

future persecution “on account of” race, religion, nationality, political opinion, or

membership in a particular social group. Garcia v. Holder, 749 F.3d 785, 791 (9th

Cir. 2014) (simplified). The BIA affirmed the IJ’s conclusion that Soledad

Hernandez did not demonstrate that he was likely to be persecuted in Mexico on

account of his Nawat ancestry. The record does not compel a contrary conclusion.

Soledad Hernandez testified that he was beaten by gang members multiple times,

but he did not establish that the assaults were on account of his indigenous status.

See 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.”). Soledad Hernandez also testified

that his father and cousin were killed by unknown attackers, but he provided no

evidence that they were targeted because of their indigenous ancestry. And while

Soledad Hernandez contends that his family are “prisoners in their own home,” he

admitted that his brother “works and studies” and his sister is married and cleans

2 houses. Cf. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004) (no well-founded

fear of future persecution where “Petitioners have several family members who

continue to live in Egypt and who have been able to obtain university educations and

employment after graduation”).

2. Substantial evidence also supports the denial of CAT relief. “To

qualify for CAT relief, an applicant must establish that he or she is more likely than

not to suffer intentionally-inflicted cruel and inhuman treatment if removed.”

Garcia, 749 F.3d at 791 (simplified). “Torture” is “an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman or degrading

treatment or punishment that do not amount to torture.” 8 C.F.R.§ 1208.18(a)(2).

The random violence Soledad Hernandez experienced at the hands of gang members

in Mexico, while unfortunate, does not rise to the level of torture. Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (holding that “generalized evidence of

violence and crime in Mexico . . . is insufficient to meet [the CAT] standard”). Also,

Soledad Hernandez testified that his mother and siblings safely remained and

worked in his hometown for many years after he left, which also supports the BIA’s

conclusion that he is not likely to be tortured. See Santos-Lemus v. Mukasey, 542

F.3d 738, 747–48 (9th Cir. 2008) (holding that the lack of harm to petitioner’s family

in his hometown constituted substantial evidence that petitioner was not more than

likely going to be tortured).

3 3. We reject Soledad Hernandez’s argument that his case should be

remanded because the BIA allegedly did not consider the complete record. While it

is unclear what Soledad Hernandez claims was deficient with the record, we note

that the BIA specifically referenced the exhibit Soledad Hernandez highlighted as

not submitted to it, indicating that the BIA had access to, and duly considered, the

evidence in the record. The BIA is entitled to “the presumption of regularity” unless

an opposing party rebuts that presumption with “clear, affirmative evidence to the

contrary.” Gov’t of Guam v. Guerrero, 11 F.4th 1052, 1058 (9th Cir. 2021). Soledad

Hernandez fails to do so. Furthermore, to be entitled to a remand, Soledad

Hernandez must “show prejudice, which means that the outcome of the proceeding

may have been affected by the alleged violation.” Alanniz v. Barr, 924 F.3d 1061,

1068 (9th Cir. 2019) (quoting Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.

2005)). Soledad Hernandez fails to show how any missing document could have

affected the outcome of his applications.

PETITION DENIED.