Christian Munoz-Mejia v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN MOISES MUNOZ-MEJIA, No. 20-72598
Petitioner, Agency No. A088-523-512
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of a Final Order of the
Department of Homeland Security
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.
Christian Moises Munoz-Mejia, a native and citizen of Honduras, first
entered the United States without authorization in August 2007 and was removed
*
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.
to Honduras four months later. Munoz-Mejia then illegally reentered the United
States in March 2012 and, in July 2020, the Department of Homeland Security
reinstated its prior order of removal. He now petitions for review of an
immigration judge’s (IJ’s) determination under 8 C.F.R. § 1208.31(a) that Munoz-
Mejia did not have a reasonable fear of persecution or torture in Honduras and thus
is not entitled to relief from the reinstated removal order.
Substantial evidence and controlling caselaw support the IJ’s determination
that Munoz-Mejia failed to establish a reasonable possibility of persecution in
Honduras on account of a protected ground. See Alvarado-Herrera v. Garland,
993 F.3d 1187, 1196 (9th Cir. 2021) (holding that the petitioner failed to establish
that harm would occur on “account of” one of the five protected grounds). Munoz-
Mejia alleges two protected grounds: religion and membership in the group
defined as “young Honduran males who resist gang recruitment.”
As for religion, the record does not support Munoz-Mejia’s argument that he
has demonstrated a reasonable possibility of persecution because of his Christian
faith. Although members of a gang insulted Munoz-Mejia’s faith, they did so only
after they asked him to join them. The gang members, moreover, did not ever
harm or threaten to harm Munoz-Mejia.
As to Munoz-Mejia’s broadly defined social group, “[a]n alien’s desire to be
free from harassment by criminals motivated by theft or random violence by gang
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members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46
(9th Cir. 2008) (holding that “young men in El Salvador resisting gang violence”
did not constitute a social group because the group was too loosely defined to meet
the particularity requirement and because it lacked social visibility), abrogated on
other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en
banc).
Munoz-Mejia attempts to differentiate his case from controlling caselaw by
arguing that the gangs in his case were particularly “persisten[t]” in their desire to
recruit him. Such an observation, however, is immaterial because Munoz-Mejia
fails to link the persistence of the gangs’ forceful recruitment to their motivation
for recruitment. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (explaining
that because motive is “critical” to a finding of persecution, the petitioner “must
provide some evidence of it, direct or circumstantial”) (emphasis in original); see
also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam) (noting that
the petitioner must show that “persecution was or will be on account of his
membership in such [a protected] group”) (emphasis in original).
Substantial evidence and controlling caselaw also support the IJ’s decision
that, because Munoz-Mejia failed to “indicat[e] [that he] would be harmed by
police or government,” Munoz-Mejia did not demonstrate a reasonable possibility
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of torture in Honduras. The applicable regulations mandate that torture, for
purposes of relief under the Convention Against 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. §§ 208.18(a)(1), 1208.18(a)(1).
Munoz-Mejia does not argue that state actors inflicted, instigated, or consented to
the harm that he experienced. He instead contends that “the police were either
unable or unwilling to stop the torture he was suffering at the hands of the gang
members.”
Public officials indeed “acquiesce” in torture if they: “(1) have awareness of
the activity (or consciously close their eyes to the fact it is going on); and
(2) breach their legal responsibility to intervene to prevent the activity because
they are unable or unwilling to oppose it.” Garcia–Milian v. Holder, 755 F.3d
1026, 1034 (9th Cir. 2014). But Munoz-Mejia failed to provide any specific
examples of the police being alerted to and refusing to investigate gang-related
reports—filed by either himself or others—and further admitted that he had never
heard of police working with gangs, such as by receiving money from gangs or by
refusing to arrest a gang member.
Munoz-Mejia instead claims that he heard from mothers in his neighborhood
that police “don’t do anything” after people file reports. Such broad allegations,
however, are not sufficient for this court to reverse the IJ’s determination because,
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“absent evidence of corruption or other inability or unwillingness to oppose
criminal organizations[,]” “evidence that a government has been generally
ineffective in preventing or investigating criminal activities [does not] raise an
inference that public officials are likely to acquiesce in torture.” Id.; see also
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence.”).
The petition for review is therefore DENIED, and Munoz-Mejia’s
supplemental motion for a stay of removal is DENIED as moot.
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