Victor Perez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2020
• Docket: 16-71918
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR MANUEL PEREZ, AKA Victor No. 16-71918 Perez, Agency No. A087-446-901 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted February 14, 2019 Vacated October 7, 2019 Resubmitted April 20, 2020 Pasadena, California

Before: CALLAHAN and HURWITZ, Circuit Judges, and KORMAN,** District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. ** Pursuant to Ninth Circuit General Order 3.2.h, Judge Hurwitz was drawn by lot to replace our late colleague Judge Raymond T. Fisher. Judge Hurwitz has reviewed the record and briefs in this case and listened to the oral argument before the prior panel. Victor Manuel Perez, a native and citizen of Mexico, petitions for review of

a final order of removal issued by the Board of Immigration Appeals (BIA),

denying his applications for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT). As the parties are familiar with the facts

and procedural history, we do not recount them in detail here. We have

jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.1

1. An asylum or withholding applicant’s burden includes (1) “demonstrating

the existence of a cognizable particular social group,” (2) “his membership in that

particular social group,” and (3) “a risk of persecution on account of his

membership in the specified particular social group.” Reyes v. Lynch, 842 F.3d

1125, 1132 n.3 (9th Cir. 2016) (citation omitted). Perez argues that he is eligible

for both asylum and withholding of removal based on his membership in the social

groups of “partnered Mexican women and their children who are unable to leave

their relationships” and “persons with severe and chronic mental illness in Mexico

who exhibit erratic behavior.” However, Perez did not raise these groups before

either the immigration judge or the BIA. This court is barred “for lack of subject-

matter jurisdiction, from reaching the merits of a legal claim not presented in

1 We address Perez’s request for compensation of counsel in our concurrently filed opinion, Perez v. Barr, F.3d (9th Cir. 2020).

2 administrative proceedings below.” Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004).

Considering only the claims raised below, the agency did not err in finding

that Perez’s proposed particular social groups were not cognizable for the purposes

of asylum and withholding of removal. Specifically, the BIA did not err in

rejecting Perez’s proposed particular social group of “victims of domestic violence

in Mexico” on the ground that such a group “is defined by the very persecution its

members are avoiding, rather than by an independent immutable characteristic.”

See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 232 (B.I.A. 2014). Likewise, the

BIA did not err in concluding that Perez’s proposed social group of “persons with

serious and chronic mental illness in Mexico” is insufficiently particular. See

Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1164 (9th Cir. 2013). Because Perez

is unable to establish the existence of a cognizable particular social group to

support his claims for asylum and withholding of removal, we uphold the agency’s

denial of his applications for such relief.

2. To obtain relief under the CAT, a petitioner must prove that it is more

likely than not that he or she will be tortured in the country of removal. 8 C.F.R.

§ 1208.16(c)(2). The torture must be “inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1). We conclude that substantial evidence

3 supports the agency’s findings that Perez did not experience harm rising to the

level of torture in Mexico and that he has not established “it is ‘more likely than

not’ that he [] will be tortured, and not simply persecuted,” if returned to Mexico.

Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). The agency did not err in

denying Perez’s CAT claim.

The petition for review is DENIED.