Epifanio Perez v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EPIFANIO MARTINEZ PEREZ, No. 16-73326
Petitioner, Agency No. A070-560-143
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 17, 2018
Seattle, Washington
Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.
Epifanio Martinez Perez, a native and citizen of Mexico, petitions for review
of a decision of the Board of Immigration Appeals (“BIA”) dismissing an appeal of
the denial by an Immigration Judge (“IJ”) of his applications for withholding of
removal and relief under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raymond J. Dearie, United States District Judge for the
Eastern District of New York, sitting by designation.
jurisdiction pursuant to 8 U.S.C. § 1252 and review the BIA’s factual findings for
substantial evidence. See Lopez-Birrueta v. Holder, 633 F.3d 1211, 1214 (9th Cir.
2011). We deny the petition for review.
1. “[A] petitioner may establish eligibility for withholding of removal (A) by
establishing a presumption of fear of future persecution based on past persecution,
or (B) through an independent showing of clear probability of future persecution.”
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8 C.F.R.
§ 1208.16(b)(1)–(2)). Even taking Perez’s testimony as true, substantial evidence
supports the IJ’s and BIA’s finding that Perez had not established that the Mexican
government was “unable or unwilling to control” his alleged persecutors. See
Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004). When Perez reported his
fear of being falsely accused of child molestation to police officers, they assured him
that there were no charges pending against him. See Truong v. Holder, 613 F.3d
938, 941 (9th Cir. 2010) (per curiam) (“[T]he Truongs’ professed belief that the
Italian government was complicit in or unwilling to stop their harassment is
undermined by the fact that the Truongs repeatedly sought assistance from the Italian
police, who dutifully made reports after each incident and indicated that they would
investigate.”). After Perez’s grandfather allegedly threatened him, officers agreed
to place Perez in protective custody. Even assuming the truth of Perez’s contention
that a police officer then accepted a bribe to allow Perez’s grandfather and his
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associates into the jail, Perez does not assert that the police allowed the men to harm
him. Rather, he claims officers detained them in a separate cell and then released
him well before them.
2. Perez provided country condition reports and expert testimony describing
the Mexican police as corrupt. A petitioner may “use generalized country conditions
information to show that reporting . . . activity to the police would have been futile,
or that doing so might have placed the applicant in greater danger.” Afriyie v.
Holder, 613 F.3d 924, 931 (9th Cir. 2010) (citations omitted). But, “when an
applicant attempts to report persecution to the police or request protection from
them, the authorities’ response . . . may provide powerful evidence with respect to
the government’s willingness or ability to protect the requestor.” Id.; see also
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir. 2006) (“Evidence of
background country conditions alone cannot establish that specific acts of
persecution did or did not occur.”). The BIA reasonably found that “while country
conditions reflect that there is widespread corruption among local law enforcement
in Mexico, such evidence does not negate the fact that [Perez] has sought and
received protection from local law enforcement on multiple occasions in [Mexico].”
3. Substantial evidence also supports the BIA’s finding that Perez had not
established a clear probability of future persecution as an “indigent Mexican[] with
serious and apparent mental impairment who lack[s] familial support.” Perez
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previously received mental health treatment in Mexico, paid for by his sister.
Moreover, “an inadequate healthcare system is not persecution and is not harm
inflicted because of membership in a particular social group.” Mendoza-Alvarez v.
Holder, 714 F.3d 1161, 1165 (9th Cir. 2013) (per curiam).
4. “To qualify for CAT protection, a petitioner must show it is more likely
than not he or she would be tortured . . . by or with the acquiescence of a government
official or other person acting in an official capacity.” Tamang, 598 F.3d at 1095
(citing 8 C.F.R. §§ 208.16(c)(2), 1208.18(a)(1)). For the reasons noted above, the
record does not compel a conclusion that Perez would be tortured with the
acquiescence of a government official. See id.DENIED.
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