Elvis Garcia-Felipe v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVIS JAISEL GARCIA-FELIPE, No. 18-73381
Petitioner, Agency No. A202-005-524
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2021**
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.
Elvis Jaisel Garcia-Felipe, a Guatemalan native and citizen, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his applications
for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and, reviewing the
*
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).
BIA’s legal conclusions de novo and its factual findings for substantial evidence,
we deny the petition.
The BIA did not err in rejecting as insufficiently particular or distinct
Garcia-Felipe’s proposed social groups—“young males . . . opposed to gang
recruitment” and “individuals who have cooperated with authorities and are
threatened by members of criminal organizations.” Indeed, we have rejected
nearly identical groups on these grounds before. See, e.g., Barrios v. Holder, 581
F.3d 849, 854-55 (9th Cir. 2009) (“young males in Guatemala who are targeted for
gang recruitment but refuse” lacked particularity), abrogated in part by Henriquez-
Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Santos-Lemus v.
Mukasey, 542 F.3d 738, 744-46 (9th Cir. 2008) (“young men in El Salvador
resisting gang violence” lacked particularity), abrogated in part by Henriquez-
Rivas, 707 F.3d 1081; Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir.
2020) (“[Guatemalans] who report the criminal activity of gangs to the police”
lacked social distinction (internal quotation marks omitted)). And unlike the
record at issue in Henriquez-Rivas, 707 F.3d 1081, the record here contains no
indication that Guatemalan society views those who cooperate with authorities as
somehow set apart from society at large. Garcia-Felipe’s asylum and withholding
claims therefore fail.
Substantial evidence likewise supports the agency’s denial of Garcia-
2
Felipe’s CAT claim, as the record does not conclusively establish that he faces a
likelihood of torture, either by the government or with its acquiescence, in
Guatemala. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per
curiam). He reported the gang’s threats to the police on one occasion and points
out that the gang continued intimidating people in the area. However, “[e]vidence
that the police were aware of a particular crime, but failed to bring the perpetrators
to justice, is not in itself sufficient to establish acquiescence.” Garcia-Milian v.
Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
PETITION DENIED.
3