James Reynaga Estella v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LEONARD REYNAGA No. 18-71821
ESTELLA,
Agency No. A046-871-093
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 13, 2021
Pasadena, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and EZRA,** District
Judge.
Petitioner James Leonard Reynaga Estella (“Petitioner”) is a native and
citizen of Peru. He petitions for review of an order of the Board of Immigration
Appeals (“BIA”) in which the BIA: (1) dismissed his appeal of the decision of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Immigration Judge Lee A. O’Connor (“IJ O’Connor”), denying his application for
asylum and withholding of removal, and (2) denied his claim that IJ O’Connor
violated his right to procedural due process claim. We have jurisdiction under
8 U.S.C. § 1252. We review the BIA’s denials of asylum and withholding for
substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir.
2006), and the due process determination de novo, Rodriguez-Lariz v. I.N.S., 282
F.3d 1218, 1222 (9th Cir. 2002), and deny the petition.
Because the parties are familiar with the facts and history of this matter, we
repeat them only briefly. After he was charged with removability, Petitioner
applied for asylum and withholding of removal relief in 2006 based on
membership in a protected social group. He was denied relief in proceedings
before Immigration Judge Ted. A. White (“IJ White”). Since then, we have
remanded Petitioner’s case to the BIA twice, most recently in 2015 “to determine
the impact, if any,” of
this court’s decisions in Henriquez-Rivas v. Holder,
707 F.3d 1081 (9th Cir. 2013) (en banc), Cordoba v.
Holder, 726 F.3d 1106 (9th Cir. 2013), and Pirir-Boc v.
Holder, 750 F.3d 1077 (9th Cir. 2014), [and] the BIA’s
decisions in Matter of M-E-V-G-, 26 I. & N. Dec. 227(BIA 2014), and Matter of W-G-R-, 26 I. & N. Dec. 208(BIA 2014).
Estella v. Holder, 598 F. App’x 527, 527–28 (9th Cir. 2015). Following that
remand, the BIA sent the case to IJ O’Connor “for further proceedings not
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inconsistent with the Ninth Circuit’s order” and observed that “further fact-finding
may be needed.” IJ O’Connor held hearings on April 6, 2016, and November 17,
2016, and denied Petitioner relief on January 5, 2017. The BIA affirmed IJ
O’Connor’s decision and rejected Petitioner’s claim that IJ O’Connor prejudicially
violated Petitioner’s due process rights by exhibiting bias in the November 17,
2016 hearing and refusing to accept additional testimony and other evidence after
deadlines had passed.
To qualify for asylum, an applicant must establish that “race, religion,
nationality, membership in a particular social group, or political opinion was or
will be at least one central reason” he faces persecution in his home country.
8 U.S.C. § 1158(b)(1)(B)(i); see also id. § 1101(a)(42) (defining “refugee”).
Particular social group claims require the applicant to “establish that the group is
(1) composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in question.”
Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (BIA 2014)). Petitioner applied for protection based on
membership in one or more of the following particular social groups: youth at risk
of being victimized by gangs in a gang infested area; affluent military families; and
family members of military personnel who are threatened by Sendero Luminoso
and gangs.
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The BIA did not err in rejecting Petitioner’s first proposed group—youth at
risk of being victimized by gangs in a gang infested area—as not cognizable
because youth is not an immutable characteristic and the group lacks particularity.
Cf. Nguyen v. Barr, 983 F.3d 1099, 1103–04 (9th Cir. 2020) (rejecting proposed
group of “known drug users” as “amorphous, overbroad, diffuse, or subjective”).
The BIA also appropriately dismissed Petitioner’s second proposed particular
social group—affluent military families—because it also lacks an immutable
characteristic, and because Petitioner failed to explain how this group might be
defined with particularity in a way that would include Petitioner, whose
grandfather is his closest family military tie. Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1229 (9th Cir. 2016); see Cordoba v. Barr, 962 F.3d 479, 483 (9th Cir.
2020). The BIA also properly rejected the third particular social proposed group—
family members of military personnel who are threatened by Sendero Luminoso
and gangs—as lacking social distinction because Petitioner did not present
sufficient evidence that Peruvian society “‘recognizes the unique vulnerability’ of
that group.” Diaz-Torres v. Barr, 963 F.3d 976, 980–82 (9th Cir. 2020) (quoting
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (en banc)).
Moreover, substantial evidence supports the BIA’s conclusion that Petitioner
did not establish a nexus between any of his proposed particular social groups and
the asserted persecution. See Reyes, 842 F.3d at 1132 (treating the nexus
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requirement as “distinct from” the social group determination). Substantial
evidence in the record supports IJ O’Connor’s determination that Petitioner’s
encounters with gangs were not on account of his membership in any particular
social group. Rather, he was either a victim of indiscriminate crime common to
the area or targeted by gangs because of his membership in a rival gang, or some
combination of the two. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(“An alien’s desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground.”).
Petitioner’s claim that his due process rights were violated by IJ O’Connor’s
handling of the November 17, 2016 hearing also falls short. Noncitizen
asylum-seekers are entitled to full and fair removal proceedings, but they must
demonstrate prejudice to prevail on a procedural due process challenge.
Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). Prejudice “means
that the outcome of the proceeding may have been affected by the alleged
violation.” Zetino, 622 F.3d at 1013 (quoting Ibarra-Flores v. Gonzales, 439 F.3d
614, 620–21 (9th Cir. 2006)). IJ O’Connor made concerning comments during the
hearing. However, even if Petitioner could demonstrate bias from these comments
or from IJ O’Connor’s decision to reject late-submitted evidence, Petitioner cannot
prove prejudice because Petitioner failed to show that the outcome would have
been different with an unbiased IJ, or that the evidence he wanted to admit would
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have addressed the deficiencies in his claims for asylum and withholding of
removal. And, a “harsh manner and tone” alone is insufficient to prove a due
process violation. Antonio-Cruz v. I.N.S., 147 F.3d 1129, 1131 (9th Cir. 1998); see
also Liteky v. United States, 510 U.S. 540, 555–56 (1994) (deeming “expressions
of impatience, dissatisfaction, annoyance, and even anger” insufficient for a
judicial bias finding).
PETITION DENIED.
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