Roberto De Leon-Reyes v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERTO DE LEON-REYES, No. 20-73622

Petitioner, Agency No. A201-551-213

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

Respondent.

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

Submitted February 17, 2022** San Francisco, California

Before: SILER,*** S.R. THOMAS, and CALLAHAN, Circuit Judges.

Roberto De Leon-Reyes, a Guatemalan citizen, timely petitions for review

of the Board of Immigration Appeals’ decision to uphold the denial of his

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. application for withholding of removal and protection under the Convention

Against Torture. We deny the petition.

I

When De Leon-Reyes first unlawfully entered the United States in May

2019, he was almost immediately detained. An order of removal was entered, and

De Leon-Reyes was deported later that month.

In October 2019, De Leon-Reyes unlawfully re-entered the United States.

He again was arrested by immigration officials and his removal order was

reinstated. He told officials that he was afraid to return to Guatemala, and an

asylum officer conducted a reasonable fear determination interview. De Leon-

Reyes testified that he feared gangs that were threatening to hurt him and his

family if he did not pay them money. The asylum officer found De Leon-Reyes to

be credible and to have a reasonable fear of persecution, and his case was referred

to an immigration judge (“IJ”) for withholding-only proceedings. In January 2020,

De Leon-Reyes appeared before an IJ and applied for withholding of removal and

protection under the Convention Against Torture.

De Leon-Reyes’ final hearing was in March 2020. There, he testified that he

had reported the gang threats to the police in Guatemala, who developed a plan to

entrap the gang members by leaving the extortion money outside De Leon-Reyes’

house. But De Leon-Reyes backed out because he thought the plan was too risky.

2 II

The IJ denied De Leon-Reyes’ application. She found De Leon-Reyes

credible and construed his testimony “very broadly” because he was pro se. But

she held that the only basis for extortion that De Leon-Reyes identified was the

gangs’ perception of his family’s wealth, which was not a cognizable basis for

withholding of removal. The IJ further found that De Leon-Reyes had not shown

that his life would be threatened based on a protected ground if he returned to

Guatemala. In addition, De Leon-Reyes did not qualify for protection under the

Convention Against Torture because De Leon-Reyes had not shown government

acquiescence or any fear of being tortured by government officials.

De Leon-Reyes appealed the IJ’s decision to the BIA. In that appeal, he

claimed his immediate family as a particular social group and alleged that gangs

targeted him, at least in part, because of his family membership. De Leon-Reyes

had not presented this issue to the IJ. The BIA rejected the argument based on De

Leon-Reyes’ failure to raise it adequately earlier.

III

A non-citizen applying for immigration relief may be entitled to mandatory

withholding of removal to his or her home country if the applicant establishes a

clear probability that the applicant’s “life or freedom would be threatened in that

country” based at least in part on one of several enumerated grounds, including

3 “membership in a particular social group.” 8 U.S.C.§ 1231(b)(3)(A); Garcia v.

Holder, 749 F.3d 785, 791 (9th Cir. 2014). A family can be a particular social

group. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).

An applicant may be entitled to protection under the Convention Against

Torture if the applicant shows that it is more likely than not that upon removal the

applicant will be tortured at the hands of or with the consent or acquiescence of a

public official in the applicant’s home country. 8 C.F.R. § 1208.16(c); Xochihua-

Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). “Acquiescence” requires that

a public official knows about the torture before it happens (or is willfully blind to

it) and breaches a legal responsibility to prevent it. 8 C.F.R. § 1208.18(a)(7).

IV

We review the BIA’s conclusions of law de novo. Zheng v. Ashcroft, 332

F.3d 1186, 1193 (9th Cir. 2003). We review the BIA’s factual findings for

substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.

2017) (en banc). Under this standard, the BIA’s findings “are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B); see Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021).

De Leon-Reyes asserts two arguments in his petition.

First, De Leon-Reyes argues that the IJ violated his due process rights by

failing to help him fully develop the record and identify the “De Leon-Reyes

4 Immediate Family” as a potentially applicable particular social group. But De

Leon-Reyes did not make this due process argument to the BIA such that the

agency had “an opportunity to consider and remedy the particular procedural errors

he raises now.” Tall v. Mukasey, 517 F.3d 1115, 1120 (9th Cir. 2008). Because De

Leon-Reyes did not exhaust his administrative remedies, we lack jurisdiction to

rule on this issue. Id.

Second, De Leon-Reyes argues that the BIA erred by denying him relief

under the Convention Against Torture. But De Leon-Reyes has not shown

government acquiescence or any reasonable fear of being tortured by government

officials. To the contrary: when De Leon-Reyes reported gang threats to the police,

the police formulated a plan to capture the culprits. It was De Leon-Reyes who

abandoned that plan.

V

We lack jurisdiction to consider De Leon-Reyes’ due process argument and

De Leon-Reyes has not shown that he is entitled to relief under the Convention

Against Torture. Accordingly, the petition is DISMISSED in part and DENIED

in part.