Francisco Gutierrez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER GUTIERREZ, No. 20-71101
Petitioner, Agency No. A205-464-700
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and MILLER, Circuit Judges.
Francisco Javier Gutierrez, a citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ dismissal of his appeal from an immigration
judge’s denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We have jurisdiction
*
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).
under 8 U.S.C. § 1252(a)(1), and we deny the petition.
1. Substantial evidence supports the Board’s determination that the
proposed social group of “MS-13 gang members in El Salvador who leave the
gang” lacks social distinction. See Garay Reyes v. Lynch, 842 F.3d 1125, 1138 (9th
Cir. 2016) (upholding the Board’s determination that the proposed social group of
“former members of the Mara 18 gang in El Salvador who have renounced their
membership” lacked social distinction); Villegas Sanchez v. Garland, 990 F.3d
1173, 1183 (9th Cir. 2021). The record evidence does not “compel the conclusion
that Salvadoran society considers former gang members as a distinct social group,
e.g., distinct from current gang members . . . or from suspected gang members who
face discriminatory treatment and other challenges in Salvadoran society.” Garay
Reyes, 842 F.3d at 1138. And none of the evidence on which Gutierrez relies
describes the differences between MS-13 and Mara 18 as meaningful to
Salvadoran society’s perception of former members of those gangs.
2. Substantial evidence supports the Board’s no-nexus finding for
Gutierrez’s proposed social group of the “Gutierrez family in El Salvador.”
Gutierrez testified that MS-13 gang members attacked him because he tried to
defect. The timing of the attack—just three days after he told the gang he was
defecting—supports that inference. There is no evidence that his familial status
was “a reason” for the attack, let alone a “central reason.” Barajas-Romero v.
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Lynch, 846 F.3d 351, 360 (9th Cir. 2017). The same is true for the gang’s attacks
on Gutierrez’s brother and nephew, whom the gang attacked for refusing to join.
3. Substantial evidence supports the Board’s decision to deny CAT
relief. The immigration judge considered Gutierrez’s credible testimony and
general evidence of country conditions. Gutierrez does not contend that the gang’s
past mistreatment of him amounted to torture. See 8 C.F.R. § 1208.16(c)(3)(i); see
also Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005) (“[T]orture is more
severe than persecution and the standard of proof for the CAT claim is higher than
the standard of proof for an asylum claim.”). There also is no evidence that the
local MS-13 clique that attacked Gutierrez knows his whereabouts or that the
broader MS-13 organization has any interest in him. And the country-conditions
evidence does not compel the conclusion that the gang likely would torture
Gutierrez if it located him. The evidence therefore “does not establish that any step
in this hypothetical chain of events is more likely than not to happen, let alone that
the entire chain will come together to result in the probability of torture.” Medina-
Rodriguez v. Barr, 979 F.3d 738, 751 (9th Cir. 2020) (quoting In re J-F-F-, 23 I. &
N. Dec. 912, 917–18 (A.G. 2006)).
4. The Board’s denial of CAT relief must stand even though the
immigration judge inadvertently said “Guatemala” twice instead of “El Salvador”
in denying relief. Both the immigration judge and the Board clearly understood El
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Salvador to be the relevant country of removal. The immigration judge began his
discussion of Gutierrez’s CAT claim by recognizing that “[t]he evidence indicates
that there is considerable crime and violence in El Salvador.” In any event, “[a]ny
error committed by the [immigration judge is] rendered harmless by the Board’s
application of the correct legal standard.” Ghaly v. INS, 58 F.3d 1425, 1430 (9th
Cir. 1995).
5. As Gutierrez acknowledges, recent case law forecloses his argument
that the agency lacked jurisdiction over his removal proceedings because his notice
to appear did not include the hearing location. See Aguilar Fermin v. Barr, 958
F.3d 887, 895 (9th Cir.), cert. denied, 141 S. Ct. 664 (2020); accord United States
v. Bastide-Hernandez, 986 F.3d 1245, 1248 (9th Cir. 2021).
PETITION DENIED.
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