Elmer Simon Velasquez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER SIMON VELASQUEZ, No. 18-71561
Petitioner, Agency No. A200-953-315
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2020**
Pasadena, California
Before: CALLAHAN, BUMATAY, and VANDYKE, Circuit Judges.
Elmer Simon Velasquez petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) denial of his
application for withholding of removal and application for protection under the
Convention Against Torture (CAT). We review denials of withholding of removal
*
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).
and CAT protection for “substantial evidence.” Quijada-Aguilar v. Lynch, 799
F.3d 1303, 1305 (9th Cir. 2015); Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir.
2010). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for
review.
1. Substantial evidence in the record supports the BIA’s determination
that Velasquez failed to show that his past harm rose to the level of persecution or
an objectively clear probability of future persecution. To succeed on a petition for
withholding of removal, a petitioner must show a clear probability of the threat to
his life or freedom if deported through either a presumption of fear of future
persecution based on past persecution, or an independent clear probability of future
persecution. Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Although
Velasquez testified regarding several fights between himself and gang members in
Guatemala when he was in school between 1994 and 1999, he presented no
evidence regarding the frequency, duration, or severity of the fights. Velasquez
may have believed gang members were threatening him when they said that he
“had to be with them one way or another, on good terms or bad terms,” but the
record does not reflect any specific consequences to Velasquez or his family from
his refusal to join a gang. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.
2004) (“[T]hreats may be compelling evidence of past persecution, particularly
when they are specific and menacing and are accompanied by evidence of violent
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confrontations…”). Gang members stated they were not interested in his father,
and other than the shooting incident in 2009 by an unidentified individual with
unknown motivations, there is no evidence that Velasquez’s family has suffered
any harm by gang members. The BIA reasonably found that Velasquez had not
presented evidence of past persecution or an objectively clear probability of future
persecution.
2. Substantial evidence supports the BIA’s determination that
Velasquez’s harm was not on account of his membership in a particular social
group. An applicant seeking withholding of removal based on claims of
membership in a particular social group must establish that the group is composed
of members who share a common immutable characteristic, defined with
particularity, and socially distinct within the society in question. Reyes v. Lynch,
842 F.3d 1125, 1134-37 (9th Cir. 2016). Although the social distinction prong of
this determination is made on a case-by-case basis, we have repeatedly found
groups like the one proposed by Velasquez not to be protected social groups. Id. at
1137 (former members of the Mara 18 gang in El Salvador who have renounced
their membership); Diaz Torres v. Barr, 963 F.3d 976, 980-81 (9th Cir. 2020)
(professionals who refuse to cooperate with drug cartels in Mexico); Conde
Quevado v. Barr, 947 F.3d 1238, 1242-43 (9th Cir. 2020) (people who report
criminal activity of gangs in Guatemala). In support of his claim, Velasquez
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presented no evidence indicating that his proposed social group, people who have
expressed opposition to gang recruitment, is viewed as socially particularized or
distinct within Guatemala.
3. The BIA found that the IJ’s application of the “central reason”
standard, rather than evaluating whether a protected ground was “a reason” for
Velasquez’s harm, was harmless error. Because Velasquez was reasonably found
not to be a member of any cognizable social group, his membership in such a
group could not be “a reason” or a “central reason” for his alleged persecution.
4. Substantial evidence supports the BIA’s determination that it is not
more likely than not that Velasquez would be tortured with the acquiescence of the
government if returned to Guatemala. A petitioner for CAT protection must
establish that it is more likely than not that he or she would be tortured if removed
to the proposed country of removal. Kamalthas v. INS, 251 F.3d 1279, 1284 (9th
Cir. 2001). The record does not show that Velasquez was tortured in the past.
Moreover, he appears able to relocate within Guatemala, as he did previously
while working for the government. The Guatemalan government does not
acquiesce to his torture simply because police officers are unable to be with
Velasquez at all times. Velasquez has not shown a likelihood of torture if he is
returned to Guatemala.
PETITION DENIED.
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