Tomas-Ramirez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2023
• Docket: 21-656
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Arnulfo Tomas-Ramirez, No. 21-656

Petitioner, Agency No. A213-613-299

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted March 10, 2023** Pasadena, California

Before: GILMAN***, FORREST, and H.A. THOMAS, Circuit Judges.

Petitioner Arnulfo Tomas-Ramirez, a native and citizen of Guatemala,

seeks review of the Board of Immigration Appeals’ (BIA) 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. application for withholding of removal. 1 We have jurisdiction under 8 U.S.C.

§ 1252(a), and we deny the petition.

Where, as here, the BIA conducts its own review of the evidence and law,

our “review is limited to the BIA’s decision, except to the extent the [Immigration

Judge’s] opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909, 911 (9th

Cir. 2020) (citation omitted). We review the “BIA’s legal conclusions de novo

and its factual findings for substantial evidence.” Garcia v. Wilkinson, 988 F.3d

1136, 1142 (9th Cir. 2021) (internal quotation marks and citation omitted).

Substantial evidence supports the BIA’s determination that Tomas-

Ramirez would not be persecuted on account of any protected ground if removed

to Guatemala. Tomas-Ramirez claims that he will be persecuted in Guatemala

based on his Mayan ethnicity and family membership. Like the BIA, we assume

that these two proposed social groups are cognizable. Regarding his social group

based on ethnicity, Tomas-Ramirez presented evidence that as a child he suffered

discrimination and harassment by a schoolteacher because he is Mayan.

Persecution, however, “is an extreme concept that means something considerably

more than discrimination or harassment.” Sharma v. Garland, 9 F.4th 1052, 1060

(9th Cir. 2021). The record does not compel the conclusion that the mistreatment

1 Because Tomas-Ramirez does not appeal the agency’s denial of his due process claim or its denial of his requests for asylum, protection under the Convention Against Torture, and voluntary departure, he has forfeited any challenge related to those claims. See Iraheta-Martinez v. Garland, 12 F.4th 942, 959 (9th Cir. 2021) (failure to develop argument in opening brief constitutes forfeiture).

2 21-656 Tomas-Ramirez faced as a child rose to the level of persecution. See Mansour v.

Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (“[A]s morally reprehensible as it

may be,” discrimination based on race “does not ordinarily amount to

‘persecution.’”).

Turning to his family social group, Tomas-Ramirez fears returning to

Guatemala based on mistreatment that his mother and sister suffered in

connection with their opposition to the construction of a hydroelectric dam near

their town. The harm that his mother and sister suffered occurred after he left

Guatemala, and the dam construction ceased in 2016. There is no evidence that

anyone would seek to harm him if he returned to Guatemala. See Tamang v.

Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010) (concluding that the petitioner,

“who was not in the country at the time he claims to have suffered past

persecution,” could not show past persecution based on harm to his family

because “harm to others may [not] substitute for harm to an applicant”). He does

not allege that anyone has threatened him in connection with his family members

or their opposition to the dam, making the possibility of such harm speculative.

See Sharma, 9 F.4th at 1065 (finding possibility of future persecution

“speculative”). Notably, Tomas-Ramirez has not lived in Guatemala since 2012,

and that his father and three of his siblings still live there safely undermines the

reasonableness of his claimed fear of future persecution. See id. at 1066.

Finally, Tomas-Ramirez claimed before the agency that he was persecuted

by the MS-13 gang when he was young after refusing to participate in gang

3 21-656 activities. Even assuming that he has not forfeited this argument by not raising it

in his brief to this court, the record does not compel the conclusion that any such

persecution was on account of Tomas-Ramirez’s ethnicity or family association.

PETITION DENIED.

4 21-656