Noel Jimenez Mercado v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEL JIMENEZ MERCADO, AKA No. 20-71511
Fernando Tellez Barrera,
Agency No. A077-751-241
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2022**
Pasadena, California
Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District
Judge.
Noel Jimenez Mercado, a native and citizen of Mexico, petitions this Court
*
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 Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his
appeal from the Immigration Judge’s (“IJ”) denial of his application for
withholding of removal and Convention Against Torture (“CAT”) relief. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition. Because the
parties are familiar with the history of the case, we need not recount it here.
1. Petitioner forfeited review of the agency’s denial of withholding of
removal based on his proposed particular social group of his family by failing to
challenge the BIA’s determination that this proposed particular social group was
not cognizable. Etemadi v. Garland, 12 F.4th 1013, 1026–27 (9th Cir. 2021). But
even if his claims were not forfeited, the BIA properly determined that this
proposed particular social group was not cognizable.
A “particular social group” must be “(1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.” Akosung v. Barr, 970 F.3d 1095, 1103 (9th
Cir. 2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).
“The BIA’s conclusion regarding social distinction—whether there is evidence that
a specific society recognizes a social group—is a question of fact that we review
for substantial evidence.” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir.
2020). “To prevail under the substantial evidence standard, the petitioner ‘must
show that the evidence not only supports, but compels the conclusion that these
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findings and decisions are erroneous.’” Plancarte Sauceda v. Garland, 23 F.4th
824, 831 (9th Cir. 2022) (quoting Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir.
2020)). The BIA’s determination that Petitioner failed to show that his family
group was socially distinct rested on the IJ’s finding that his entire family was not
targeted for harm. That finding is supported by record evidence that not all
members of Petitioner’s family received threats after his uncle’s kidnapping;
rather, the evidence showed that only witnesses to the kidnapping were threatened.
The record thus does not compel the conclusion that the BIA’s decision was
erroneous.
2. Reviewing for substantial evidence the BIA’s determination that
Petitioner is not eligible for withholding of removal, id. at 831, we agree that the
record shows he failed to establish past persecution “because of” a protected
ground, Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (citing 8
U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)).
There is no record evidence that Petitioner's family membership or political
opinion were a reason he was hit by a truck in 2011 or that his political opinion
was a reason for the kidnapping or beating by the marines. And the record does
not compel the conclusion that the interactions with officers in 2013 or the threats
received in 2014 rise to the level of persecution. See Halaim v. I.N.S., 358 F.3d
1128, 1132 (9th Cir. 2004) (determining years of derogatory comments and “a few
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incidents” of police harassment did not compel the conclusion of persecution);
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (explaining that
two threats from “hitmen” did not compel the conclusion of persecution where
there was no corresponding violence or other indications of mistreatment).
Substantial evidence supports the BIA’s determination that Petitioner did not
establish a clear probability of future persecution based on his family membership
or political opinion. See 8 C.F.R. § 208.16(b)(2). The record evidence that other
members of Petitioner’s family received threats after his uncle’s kidnapping but
continued to live in Mexico unharmed, even after they testified at the kidnappers’
trial, supported the BIA’s conclusion that he did not demonstrate that it was more
likely than not that he would be persecuted on account of his family membership.
Similarly, the record supported the BIA’s conclusion that Petitioner did not
demonstrate a clear probability of future political persecution because his uncle,
who also supported Petitioner’s preferred candidate, had not been harmed since the
kidnapping; there was no evidence that supporters of Petitioner’s candidate were
persecuted; and the police prosecuted the kidnappers. Barrios v. Holder, 581 F.3d
849, 854 (9th Cir. 2009) (explaining that source of persecution must be a
government official or an individual or group that the government is unwilling or
unable to control), abrogated on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081 (9th Cir. 2013) (en banc).
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3. Substantial evidence supports the BIA’s determination that Petitioner
failed to establish a clear probability of torture by or with the acquiescence or
willful blindness of a government official. Although the agency found that
Petitioner’s interrogation and beating by marines was a harm rising to the level of
persecution, the agency properly concluded that it did not rise to the level of
torture. See Gui v. INS, 280 F.3d 1217, 1222–23, 1230 (9th Cir. 2002) (holding
that “serious” persecution including 24-hour interrogation and several-hit-and-run
car accidents “did not amount to torture”); see also Ahmed v. Keisler, 504 F.3d
1183, 1201 (9th Cir. 2007) (holding that substantial evidence supported denial of
CAT relief because petitioner’s detention and beatings on four occasions did not
“clear[ly] . . . rise to the level of torture”). And the record does not compel the
conclusion that Petitioner would be tortured upon return to Mexico because
Petitioner’s relatives who were threatened then continued to reside safely in
Mexico after his uncle’s kidnapping. Finally, we have repeatedly affirmed
findings like those in this case that generalized evidence of crime and violence in
Mexico not particular to petitioners does not meet the standard for relief under the
CAT. See, e.g., Gonzalez-Caraveo, 882 F.3d at 895. In sum, the record does not
compel the conclusion that Petitioner more likely than not will be tortured upon
return to Mexico.
PETITION FOR REVIEW DENIED.
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