Enrique Gomez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE GOMEZ, AKA Enrique Gomez No. 15-72483
Mejibar, AKA Enrique Gomezmejia, AKA
Oscar Lopez, AKA Enrique Menjivar Agency No. A206-342-040
Gomez, AKA Gregory Sandoval,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2022**
Pasadena, California
Before: SMITH,*** BADE, and LEE, Circuit Judges.
*
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 D. Brooks Smith, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
Enrique Gomez, a native of El Salvador, petitions for review of the Board of
Immigration Appeals’ (BIA) order affirming the Immigration Judge’s decision to
order his removal from the United States. We have jurisdiction under 8 U.S.C.
§ 1252(a). We review questions of law de novo and questions of fact for substantial
evidence. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014). We deny the petition
for review.
Gomez originally applied for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). In petitioning this court, Gomez
challenges only the BIA’s denial of asylum. Because Gomez has not challenged
denials of withholding of removal or CAT protection, we need not reach those
claims. See Aguilar-Ramos v. Holder, 594 F.3d 701, 703 n.1 (9th Cir. 2010)
(recognizing waiver of issues not appealed).
Noncitizens may be granted asylum if they have “suffered past persecution or
. . . ha[ve] a well-founded fear of future persecution.” 8 C.F.R. § 1208.13(b). To be
eligible because of past persecution, a noncitizen applicant must establish that he has
“suffered persecution in the past in the applicant’s country of nationality . . . on
account of race, religion, nationality, membership in a particular social group, or
political opinion, and is unable or unwilling to return to, or avail himself . . . of the
protection of, that country owing to such persecution.” Id. § 1208.13(b)(1); see also
Nava v. I.N.S., 217 F.3d 646, 655–56 (9th Cir. 2000).
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Substantial evidence supports the BIA’s conclusion that Gomez did not
establish past persecution. Gomez has never been harmed or threatened in El
Salvador. The murder of his children’s mother does not compel a finding of past
persecution because there is no evidence that her murder was directed against
Gomez, see Sumolang v. Holder, 723 F.3d 1080, 1084 (9th Cir. 2013), and her
murder occurred two years after Gomez arrived in the United States, see Tamang v.
Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010). Moreover, the threat received by
Gomez’s son does not constitute persecution. See Hoxha v. Ashcroft, 319 F.3d 1179,
1182 (9th Cir. 2003) (characterizing “unfilled threats” as “harassment rather than
persecution”).
Gomez contends the BIA erred by failing to consider whether he is a member
of a particular social group, and that failure necessitates remand. But Gomez is
mistaken; one’s membership in a particular social group does not entitle that person
to asylum absent persecution or a well-founded fear of future persecution. Because
substantial evidence supports the conclusion that Gomez was not persecuted, no
persecution could have taken place on account of his membership in a particular
social group. That the group may have been cognizable is of no moment. See I.N.S.
v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”).
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This leaves future persecution as Gomez’s only other avenue to asylum. To
be eligible for asylum because of a well-founded fear of future persecution, the
noncitizen must not be able to “avoid persecution by relocating to another part of the
applicant’s country of nationality . . . if under all the circumstances it would be
reasonable to expect the applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). The BIA
concluded that Gomez does not have a well-founded fear of persecution because he
did not establish that he would be unable to relocate within El Salvador. Gomez
does not challenge this dispositive conclusion. See Aguilar-Ramos, 594 F.3d at 703
n.1. We thus deny Gomez’s petition for review.
DENIED.
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