Perez-Perez v. McHenry

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2025
• Docket: 23-2633
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUIS ALONSO PEREZ-PEREZ; MARIA No. 23-2633 BLANCA REYNA LOPEZ DE Agency Nos. PEREZ; LISETH ARELY PEREZ A218-146-824 LOPEZ; STEVEN ALONSO PEREZ- A218-146-825 LOPEZ; FATIMA YAMILETH PEREZ- A218-146-826 LOPEZ, A218-146-827 A218-146-828 Petitioners,

v. MEMORANDUM* JAMES R. MCHENRY III, Acting Attorney General,

Respondent.

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

Submitted January 24, 2025**

Before: GRABER, FRIEDLAND, and BUMATAY, Circuit Judges.

* 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). Petitioners Luis Alonso Perez-Perez and his wife and children, all natives and

citizens of El Salvador, petition for review of a Board of Immigration Appeals’

(“BIA”) decision dismissing the appeal of an immigration judge’s decision denying

their applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252

and deny the petition.

“We review the agency’s factual findings for substantial evidence” and its

legal conclusions de novo. Cordoba v. Barr, 962 F.3d 479, 481–82 (9th Cir. 2020).

1. Substantial evidence supports the BIA’s conclusion that Petitioners did not

show the required nexus between a statutorily protected ground and any past harm

or fear of future persecution, and thus the BIA’s denial of asylum and withholding

of removal. To show nexus, a petitioner must provide evidence concerning the

alleged persecutor’s motives. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

The record does not compel the conclusion that Petitioners were targeted because of

actual or imputed political opinions. Although Petitioners claim to hold anti-gang

political opinions, Petitioner Luis Perez-Perez testified that he was targeted for

extortion in 2011 because he owned a business as a barber. He was then approached

by gang members in 2021 at his business. Petitioners have not shown that gang

members knew of their alleged anti-gang attitudes or of their seeking law

enforcement assistance before being extorted in 2011 or 2021. And no evidence

2 23-2633 links the 2015 killing of Luis Perez-Perez’s brother to Petitioners’ political beliefs.

Further, the record does not compel the conclusion that Petitioners reasonably

fear future harm because of their actual or imputed political views. No evidence

shows that Petitioners were politically active or outspoken against gangs. An

opinion opposing criminal organizations, without more, does not show that any

future harm would have a nexus to political opinion. See Santos-Lemus v. Mukasey,

542 F.3d 738, 746–47 (9th Cir. 2008), overruled in part on other grounds by

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc). No

evidence shows that the gangs are looking for Petitioners on account of their political

views or their past defiance of the gangs.

Petitioners also claim a family-based particular social group. The record does

not compel the conclusion that gang members were motivated by any of Petitioners’

“biological ties, historical status, or other features unique to that family unit.” Matter

of L-E-A-, 27 I. & N. Dec. 40, 47 (BIA 2017), rev’d in part on other grounds, 27 I.

& N. Dec. 581 (AG 2019), restored, 28 I. & N. Dec. 304 (AG 2021). The agency

permissibly concluded that gang members targeted Petitioners because of their

perceived wealth, not because of family membership. Any motive to harm

Petitioners because of family membership was, as in Matter of L-E-A-, “at most,

incidental.” Id. at 46–47. The harm that befell Luis Perez-Perez’s brother likewise

does not compel a different conclusion, because the record does not show that the

3 23-2633 death of Perez-Perez’s brother was part of a “pattern of persecution closely tied” to

Petitioners. Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009) (quoting

Arriaga–Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991)). Although Petitioners

understandably fear harassment motivated by extortion or gang violence, their fear

“bears no nexus to a protected ground.” See Zetino v. Holder, 622 F.3d 1007, 1015–

16 (9th Cir. 2010).

Because the lack of nexus is dispositive of Petitioners’ asylum and

withholding claims, we need not address their other arguments.

2. We also deny Petitioners’ ineffective assistance of counsel claim because

it was not presented to the BIA. In general, we may review a final order of removal

only if “the alien has exhausted all administrative remedies available to the alien as

of right.” 8 U.S.C. § 1252(d)(1). This exhaustion requirement applies to claims of

ineffective assistance of counsel. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124

(9th Cir. 2000) (“We therefore require an alien who argues ineffective assistance of

counsel to exhaust his administrative remedies by first presenting the issue to the

BIA.”). As we have recently reiterated, “[t]he proper way to raise and exhaust an

ineffective assistance of counsel claim in this situation is through a motion to reopen

before the agency.” Benedicto v. Garland, 12 F.4th 1049, 1062 (9th Cir. 2021).

4 23-2633 PETITION DENIED.1

1 The temporary stay of removal will remain in place until the mandate issues, and the motion to stay removal, Dkt. No. 2, is otherwise denied as moot.

5 23-2633