Neryda Peruch-Xocoy v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NERYDA PERUCH-XOCOY, et ano., No. 15-73922
Petitioners, Agency Nos. A206-835-004
A206-835-005
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney Gen-
eral,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 25, 2022**
San Francisco, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International
Trade Judge.
Neryda Peruch-Xocoy, a native and citizen of Guatemala of indigenous de-
scent, petitions on behalf of herself and her minor daughter for review of a Board of
*
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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Immigration Appeals (BIA) decision dismissing their appeal from the order of an
Immigration Judge (IJ) denying their application for asylum, withholding of re-
moval, and protection under the Convention Against Torture (CAT).1
We “review the BIA’s denials of asylum, withholding of removal, and CAT
relief for ‘substantial evidence’” and will reverse only if the evidence compels a
contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
Where, as here, the BIA relies on the IJ’s opinion as a statement of reasons but does
not simply rubber-stamp it, we look to the IJ’s decision as the underlying support for
the Board’s ruling. Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014).
1. Substantial evidence supports the finding that the harm Peruch-Xocoy suf-
fered, while harassing, discriminatory, and offensive, did not rise to the level of per-
secution. Peruch-Xocoy was insulted for wearing indigenous clothing, was called an
Indian, was pushed while riding the bus, and had difficulty finding a better job. “Dis-
crimination on the basis of race or religion, as morally reprehensible as it may be,
does not ordinarily amount to ‘persecution’ within the meaning of the [Immigration
and Nationality] Act.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (quot-
ing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)). Moreover, persecution “is an
extreme concept that means something considerably more than discrimination or
1
The minor daughter is a party to this case as a derivative applicant for asylum.
Because her identity is not relevant to this analysis, we do not mention her by name.
2
harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (cleaned up).
“This means that some circumstances that cause petitioners physical discomfort or
loss of liberty do not qualify as persecution, despite the fact that such conditions
have caused the petitioners some harm.” Id. (cleaned up). Peruch-Xocoy testified
that she was “humiliated” but admitted that she suffered no harm in Guatemala be-
yond being pushed while riding the bus.
2. The BIA permissibly concluded that Peruch-Xocoy did not establish an ob-
jectively reasonable fear of persecution if she returns to Guatemala in view of her
testimony that similarly-situated members of her family have remained in that coun-
try without suffering similar harm. Two of her sisters are employed (one attended a
university and the other graduated from high school); her cousins also attended a
university and were able to obtain better jobs; and all of these relatives are indige-
nous people like Peruch-Xocoy. Although Peruch-Xocoy’s testimony could support
a finding that Guatemalan employers favor people who do not wear indigenous
dress, her testimony (including the facts that she completed only elementary and
secretarial school and that one employer stated she lacked sufficient education)
could also support the IJ’s finding that her lack of success in job-hunting was due to
her having received less of an education than her relatives. If reasonable minds can
differ as to what evidence shows, then the record does not compel a particular con-
clusion. Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).
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3. Finally, substantial evidence supports the denial of CAT relief. There is no
evidence that Peruch-Xocoy experienced “severe pain or suffering” sanctioned by a
public official. 8 C.F.R. § 1208.18(a)(1). Moreover, substantial evidence supports
the conclusion that Peruch-Xocoy failed to show that any torture would have been
“inflicted by or at the instigation of or with the consent or acquiescence of a public
official.” Id. Although she testified that she never asked the police for help with
being pushed on the bus because the police would not help “in those situations,” the
record contains no evidence that the police would turn a blind eye to torture. Nor
does the country-conditions evidence referencing “discriminatory police services”
compel the conclusion that the police would acquiesce in torture.
PETITION DENIED.
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