Pedraza Pimentel v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS RIMALDO PEDRAZA No. 22-361
PIMENTEL, Agency No.
A208-157-094
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2023 **
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and RAKOFF, District
Judge.***
Petitioner Jesus Rimaldo Pedraza Pimentel petitions this court for review
of the Board of Immigration Appeals’ (BIA) decision dismissing his appeal of
the Immigration Judge’s (IJ) denial of Petitioner’s applications for asylum,
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
withholding of removal, and relief under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252(d). The BIA cited Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994), and did not express any
disagreement with the IJ’s decision. Therefore, we review the IJ’s decision as if
it were the BIA’s. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009). For
the reasons below, we deny the petition.
1. Substantial evidence supports the denial of asylum and withholding of
removal because the record does not compel the conclusion that Petitioner has a
well-founded fear of future persecution or faces a clear probability of future
persecution, as required to establish eligibility for asylum or withholding of
removal. 1 When determining whether Petitioner experienced past persecution,
the IJ should have considered the surveillance of Petitioner and the forced
recruitment of his brother from the perspective of a 15-year-old. See
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007). But, even
assuming Petitioner’s experiences rose to the level of past persecution when
taking Petitioner’s age into account, Petitioner would not benefit from a
rebuttable presumption of future persecution. See Garcia-Martinez v. Ashcroft,
371 F.3d 1066, 1073 (9th Cir. 2004). In Parada v. Sessions, the court explained
1
We review the agency’s factual findings, including whether Petitioner
experienced past persecution or has shown a likelihood of future persecution,
for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059
(9th Cir. 2017) (en banc).
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that “[t]he presumption only applies to fear of persecution on the basis of the
original claim.” 902 F.3d 901, 911–12 (9th Cir. 2018). At his merits hearing,
Petitioner testified that he believed the cartels surveilled him in order to control
his brother; he did not believe that the cartels were trying to recruit him. On
appeal, Petitioner frames his fear of future persecution solely in terms of his
own potential recruitment by cartels. Because Petitioner’s fear of future
persecution is distinct from his alleged past persecution, any presumption of a
likelihood of future persecution would not apply.
Even if Petitioner could benefit from a rebuttable presumption of future
persecution, the record clearly rebuts that presumption. Petitioner’s parents and
siblings (including two brothers) continue to live in his hometown and have not
been targeted by cartels. And both Petitioner and his brother Alberto are now
older than those the cartels tend to recruit.
2. Substantial evidence also supports the agency’s denial of relief under
CAT because the record does not compel the conclusion that Petitioner would
more likely than not be tortured if he were to return to Mexico. Plancarte
Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022). The record shows that
Petitioner fears general criminal violence and lawlessness in Mexico, which is
not enough to show entitlement to CAT relief. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010).
PETITION DENIED.
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