Perez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2023
• Docket: 21-1125
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCO TULIO PEREZ, No. 21-1125 Agency No. Petitioner, A205-718-207 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 16, 2023** Pasadena, California

Before: CLIFTON and SANCHEZ, Circuit Judges, and KORMAN,*** District Judge. Marco Tulio Perez, a native and citizen of Guatemala, petitions for review of

the Board of Immigration Appeals’ (BIA) decision affirming the Immigration

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Judge’s (IJ) denial of asylum, withholding of removal, relief under the Convention

Against Torture (CAT), and cancellation of removal. We have jurisdiction under 8

U.S.C. § 1252. Reviewing the agency’s factual findings for substantial evidence

and its legal conclusions de novo, see Flores Molina v. Garland, 37 F.4th 626, 632

(9th Cir. 2022), we deny the petition for review.

1. Tulio Perez forfeited any challenge to the denial of cancellation of

removal because he did not raise it in his opening brief. See Rizk v. Holder, 629

F.3d 1083, 1091 n.3 (9th Cir. 2011).

2. Tulio Perez’s asylum and withholding of removal claims were based

upon membership in the particular social groups of “Guatemalan men who resist

gang recruitment efforts and individuals perceived to have wealth.” Whether a

group constitutes a particular social group is a question of law we review de novo.

Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021).

We have previously rejected proposed particular social groups based on resistance

to gang recruitment for lack of social distinction and/or particularity. See id. at 890

(rejecting the proposed group of “minor Christian males who oppose gang

membership” in Honduras as “not sufficiently particular or socially distinct”); see

also Ramos-Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009) (rejecting the

proposed group of “young Honduran men who have been recruited by the MS-13,

but who refuse to join”). Likewise, we have rejected proposed particular social

2 groups based on perceived wealth. See Ramirez-Munoz v. Lynch, 816 F.3d 1226,

1228–29 (9th Cir. 2016) (rejecting the proposed group of “imputed wealthy

Americans” deported to Mexico). We conclude that Tulio Perez has failed to

demonstrate that his proposed social groups are socially distinct and defined with

particularity.

3. Substantial evidence supports the agency’s denial of CAT protection.

To qualify for CAT protection, Tulio Perez must establish that it is more likely

than not that he would be tortured by or with the acquiescence of the government if

removed to Guatemala. Santos-Ponce, 987 F.3d at 891. Tulio Perez lived in

Guatemala without incident for almost six years after the alleged gang recruitment

attempt before he came to the United States. He was unable to explain why he

would be targeted if he returned to Guatemala. Therefore, he fails to establish that

he faces a particularized, ongoing risk of future torture. See Ramirez-Munoz, 816

F.3d at 1230 (“Where Petitioners have not shown they are any more likely to be

victims of violence and crimes than the populace as a whole in Mexico, they have

failed to carry their burden.”).

4. The motion for a stay of removal is denied as moot. The

temporary stay of removal remains in effect until issuance of the mandate.

PETITION DENIED.