Petronilo Lopez Tomas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2023
• Docket: 17-72868
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PETRONILO LOPEZ TOMAS; JENRRY No. 17-72868 ALEXIS LOPEZ TOMAS, Agency Nos. A208-124-161 Petitioners, A208-124-163

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

Respondent.

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

Submitted January 10, 2023** Pasadena, California

Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.

Petitioners Petronilo LopezTomas and Jenrry Lopez-Tomas, brothers and

native citizens of Guatemala, seek review of an order of the Board of Immigration

Appeals (BIA) denying their applications for asylum, 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). protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

1. Petitioners’ challenge to the jurisdiction of the immigration court is

foreclosed by our opinion in United States v. Bastide-Hernandez, 39 F.4th 1187,

1188 (9th Cir. 2022) (en banc) (“[T]he failure of [a Notice to Appear] to include

time and date information does not deprive the immigration court of subject matter

jurisdiction.”). The Immigration Judge (IJ) thus had jurisdiction over Petitioners’

case even though they were served with Notices to Appear that did not specify the

time or date of their initial hearing.

2. Where the BIA agrees with the conclusions of the IJ, the Ninth Circuit

reviews both decisions. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293

(9th Cir. 2018). The agency’s decision is reviewed under the substantial evidence

standard, Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021),

which provides that the agency’s findings of fact are considered “conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” Ruiz-

Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Zehatye v.

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

To be eligible for asylum, Petitioners must show a well-founded fear of

persecution based on “race, religion, nationality, membership in a particular social

group, or political opinion.” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir.

2 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish past persecution, an

“applicant must show: (1) an incident, or incidents, that rise to the level of

persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and

(3) is committed by the government or forces the government is either ‘unable or

unwilling’ to control.” Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000).

We agree with the BIA that the threat and mistreatment received by

Petitioners did not rise to the level of past persecution. Petitioners’ cumulative

reports of persecution amount to two instances of robbery, one beating that

Petitioners did not claim left lasting injury, a possible gunshot in Jenrry’s direction,

and an unsubstantiated threat against their mother. These incidents, while

reprehensible, do not compel a finding of persecution. See Sharma,

9 F.4th at 1063 (holding that petitioner’s involuntary detention, verbal abuse, and

beating that did not result in lasting bodily injury did not compel a finding of past

persecution).

Moreover, Petitioners have not shown that their troubles were on account of

a statutorily protected ground. Petitioners claim membership in several social

groups: “family, indigenous, refusal to join a criminal organization, and witness to

crime.” “Refusal to join a criminal organization” lacks the requisite particularity

and social distinction necessary to constitute a particular social group. See Pirir-

Boc v. Holder, 750 F.3d 1077, 1083–84 (9th Cir. 2014) (recognizing that a

3 particular social group must be socially distinct, such that society perceives

purported members to be part of a group); see also Barrios v. Holder, 581 F.3d

849, 854–55 (9th Cir. 2009) (noting that “resistance to gang membership is not a

protected ground”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707

F.3d 1081, 1093 (9th Cir. 2013) (en banc).

“Witnesses to a crime” has been recognized as a statutorily protected ground

where the witness has testified in court or become “highly visible and recognizable

by others in the country in question.” Henriquez-Rivas, 707 F.3d at 1092 (quoting

Matter of C-A-, 23 I&N Dec. 951, 960 (BIA 2006)). Here, the only crimes

allegedly witnessed by Petitioners were the threats and harm to Petitioners by the

Mara Salvatruchas gang (MS), which Petitioners declined to report to the police.

Thus, the record does not compel a finding that Petitioners’ witnessing of crimes

committed against them creates a cognizable social group.

While family membership and indigenousness involve immutable

characteristics that may constitute a particular social group, here the record does

not compel a finding that Petitioners were targeted “on account of” their

membership in either group. 8 U.S.C. § 1101(a)(42)(A). Rather, MS attempted to

recruit them and only harmed Petitioners when they refused to join. There is

nothing in the record to suggest any actions by MS against Petitioners were based

on their family ties or indigenousness.

4 Finally, the record indicates that the harm Petitioners fear is that of general

criminal activity and harassment, but we have held that “random violence by gang

members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010). Petitioners have failed to show that the record compels a

determination that they have been subject to past persecution.

3. Because Petitioners have not established a threat of persecution based on

their membership within a particular social group, they are ineligible for

withholding of removal. Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir.

2000) (“A failure to satisfy the lower standard of proof required to establish

eligibility for asylum . . . necessarily results in a failure to demonstrate eligibility

for withholding of deportation.”)

4. Petitioners are also not entitled to CAT relief because the record does not

compel a finding of “an objectively ‘reasonable possibility’ of persecution upon

return to the country.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir.

2019). As Petitioners did not report the incidents to the police, there is little

evidence that officials knew of or acquiesced in the gang’s activities. Also,

Petitioners do not allege that they took any actions against MS for which MS might

seek vengeance against them anywhere in Guatemala.

The petition is DENIED.