Perez-Peralta v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2024
• Docket: 23-4406
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE WILLS PEREZ-PERALTA; NANCY No. 23-4406 MARILU BARNICA LOPEZ; ALAYA Agency Nos. PEREZ-BARNICA, A220-302-125 A220-302-126 Petitioners, A220-302-127 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 10, 2024** San Francisco, California

Before: KOH and JOHNSTONE, Circuit Judges, and SIMON, District Judge.***

Lead Petitioner Jose Perez-Peralta petitions for review of a decision by the

* 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 Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. Board of Immigration Appeals (“BIA”) affirming the denial by an Immigration

Judge (“IJ”) of his claims for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). Petitioners Nancy Barnica Lopez

and Alaya Perez-Barnica are Perez-Peralta’s wife and minor daughter,

respectively, and were included as riders on Perez-Peralta’s application for asylum,

withholding, and CAT protection. We have jurisdiction under 8 U.S.C. § 1252(a),

and we deny the petition.

Where, as here, the BIA reviews an IJ’s decision for clear error and states

“with sufficient particularity and clarity the reasons” underlying its opinion, we

review “the reasons explicitly identified by the BIA, and then examine the

reasoning articulated in the IJ’s oral decision in support of those reasons.” Tekle v.

Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (cleaned up). We review the BIA’s

factual findings for substantial evidence and will reverse only where “any

reasonable adjudicator would be compelled to conclude to the contrary.”

Gutierrez-Alm v. Garland, 62 F.4th 1186, 1194 (9th Cir. 2023) (quoting Zehatye v.

Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)).

1. Substantial evidence supports the dismissal of Perez-Peralta’s asylum and

withholding of removal claims. As unfortunate as the mistreatment Perez-Peralta

suffered is, the record does not compel the conclusion that it rose to the “extreme”

2 level of persecution. 1 Fon v. Garland, 34 F.4th 810, 813 (9th Cir. 2022); see, e.g.,

Wakkary v. Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009) (mistreatment

including being twice beaten and robbed did not compel a past persecution

finding); Gu v. Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006).

Because Perez-Peralta does not maintain, and the record does not suggest,

that he would be subject to different or more severe mistreatment upon his return

to Honduras, substantial evidence likewise supports the conclusion that Perez-

Peralta failed to establish that he has a well-founded fear of future persecution.

Perez-Peralta also testified that his family members in Honduras have not been

threatened or harmed since he left, which further “undermines a reasonable fear of

future persecution.” Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021).

Even if Perez-Peralta established that he has been persecuted or that he has a

well-founded fear of future persecution in Honduras, substantial evidence also

supports the conclusion that such persecution was not (or would not be) on account

of a protected ground. Perez-Peralta claimed that he was persecuted on account of

his membership in two particular social groups (“PSGs”): (1) “persons deemed to

be associated with membership in a gang” and (2) “individuals perceived as gang

1 Perez-Peralta does not contest the Government’s assertion that substantial evidence review applies to the BIA’s conclusion that the harm Perez-Peralta suffered did not rise to the level of persecution.

3 members.” 2 Perez-Peralta’s argument that his PSGs are “well-established” in

asylum law finds no support in our case law. See Vasquez-Rodriguez v. Garland, 7

F.4th 888, 898 (9th Cir. 2021) (“Of course, in order for those perceived as gang

members to constitute a particular social group, Vasquez-Rodriguez would have to

demonstrate that their defining characteristic is immutable, that they can be

identified with particularity, and that they are understood to be distinct within

Salvadoran society. We do not suggest that this group would necessarily qualify.”

(citation omitted)). Substantial evidence supports the BIA’s finding that Perez-

Peralta’s PSGs were not socially distinct within Honduran society. See Conde

Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020) (“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.”); Villegas Sanchez v. Garland, 990 F.3d 1173, 1181 (9th Cir. 2021)

(“[S]ocial distinction requires evidence showing that society in general perceives,

considers, or recognizes persons sharing the particular characteristic to be a group”

2 Perez-Peralta also asserts a PSG of “Hondurans who are targeted by gangs because they are perceived to be members of a rival gang.” However, the BIA did not consider this PSG on the merits on the grounds that Perez-Peralta raised it for the first time on appeal. See Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019) (per curiam) (“The [BIA] also has the authority to prescribe procedural rules that govern the proceedings before it, and procedural default rules are consistent with this authority.”). Perez-Peralta has not argued that the BIA erred in so finding, and thus has forfeited our review of the issue. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).

4 and “the persecutors’ perception is not itself enough to make a group socially

distinct.” (internal quotation marks and citations omitted)).

We thus deny the petition as to Perez-Peralta’s asylum claim. Because

Perez-Peralta cannot meet the “lesser burden of establishing his eligibility for

asylum, he necessarily has failed to meet the more stringent . . . burden required for

withholding.” Sharma, 9 F.4th at 1066 (citation omitted). We therefore deny the

petition as to Perez-Peralta’s withholding claim as well.

2. Substantial evidence also supports the dismissal of Perez-Peralta’s claim

for CAT relief because a reasonable factfinder could conclude that Perez-Peralta

failed to show that it is more likely than not that he will be tortured upon removal

to Honduras. We have previously held that “torture is more severe than persecution

and the standard of proof for [a] CAT claim is higher than the standard of proof for

an asylum claim.” Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005). Because

substantial evidence supports the conclusion that Perez-Peralta has not experienced

past persecution, and because he does not assert that he would subject to more

severe harm upon his return to Honduras, we accordingly conclude that substantial

evidence supports the conclusion that he is unable to show that he has experienced

or is likely to experience torture. We thus deny the petition as to Perez-Peralta’s

CAT claim.

5 PETITION DENIED. 3

3 The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal is otherwise denied.