Vargas Lainez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2024
• Docket: 23-3432
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KELIN VARGAS LAINEZ; KEVIN No. 23-3432 VARGAS MARTEL, Agency Nos. A220-940-616 Petitioners, A220-940-617 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 13, 2024** San Francisco, California

Before: GOULD and BUMATAY, Circuit Judges, and COLLINS, District Judge.***

Kelin Vargas Lainez and Kevin Vargas Matel (“Petitioners”), natives 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). *** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. citizens of Honduras, petition for review of the Board of Immigration Appeals’

(“BIA”) dismissal of their appeal of an immigration judge’s (“IJ”) denial of their

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

Convention Against Torture (“CAT”). Vargas Matel is a derivative applicant on

Vargas Lainez’s application for asylum. We have jurisdiction under 8 U.S.C. §

1252. We review the agency’s legal conclusions de novo and its factual findings

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

Cir. 2017) (en banc). We deny the petition for review.

1. Substantial evidence supports the agency’s finding that Vargas Lainez failed

to show he suffered past persecution. 8 C.F.R. § 1208.13(b). The unfulfilled threats

that Vargas Lainez received from gangs and police in Honduras amounted to

harassment and general country violence rather than persecution. Lim v. INS, 224

F.3d 929, 936 (9th Cir. 2014); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.

2003).

2. Even if the harm Vargas Lainez suffered rose to the level of persecution,

substantial evidence supports the agency’s finding that Vargas Lainez failed to

establish a nexus between the harm and a protected ground. 8 U.S.C. §

1101(a)(42)(A); 8 U.S.C. § 1231(b)(3)(A). The agency appropriately concluded

that Vargas Lainez was not a member of “Honduran men who are opposed to gang

violence and gang persecution” or “Honduran men who are opposed to

2 23-3432 governmental threats and persecution” because Vargas Lainez never took any steps

to oppose the extortion efforts by either the gang or the police. Matter of W-G-R-,

26 I. & N. Dec. 208, 223 (BIA 2014) (holding applicant must show membership in

the proposed social group). The agency also appropriately concluded that

“Honduran witnesses of governmental persecution that have information that

would embarrass the government and perpetrators of the crime” is not a cognizable

group because it lacks social distinction. Diaz-Reynoso v. Barr, 968 F.3d 1070,

1084 (9th Cir. 2020) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 227 (BIA

2014)). There is no evidence that Honduran society perceives or recognizes the

group or that there is a common immutable characteristic that sets the group apart

from other people in Honduras in a significant way. Id. at 1077 (quoting Matter of

M-E-V-G-, 26 I. & N. Dec. at 238). Substantial evidence further supports the

agency’s finding that “Honduran men who are victims of gang violence and gang

persecution,” “Honduran victims of crime,” and “Honduran men who are victims

of governmental threats and persecution” are not cognizable groups because they

do not “exist independently of the harm asserted . . . .” Id. at 1080, 83. Finally,

substantial evidence supports the finding that Vargas Lainez’s fears arise from

general crime in Honduras which is typically insufficient for asylum, withholding,

or CAT protection. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010);

Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) (citing Sangha v. INS, 103 F.3d

3 23-3432 1482, 1487 (9th Cir. 1997)).

3. Substantial evidence supports the agency’s finding that Vargas Lainez was

not eligible for humanitarian asylum because the fact that he received unfulfilled

threats did not establish severe past persecution or a likelihood of other serious

harm if he were returned to Honduras. 8 C.F.R. §§ 1209.13(b)(1)(iii)(A)–(B).

4. Substantial evidence supports the agency’s finding that Vargas Lainez failed

to establish a clear probability of torture to qualify for CAT relief. Xochihua-

Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). He did not show that he

suffered past torture nor that the gang or police are seeking to torture him in the

future. Delgado-Ortiz, 600 F.3d at 1152 (explaining that evidence of a risk of

torture must be particularized to the applicant and that “generalized evidence of

violence and crime . . . is insufficient”).

PETITION DENIED.

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