Edwin Molina Hernandez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN ALEXANDER MOLINA No. 21-70569
HERNANDEZ,
Agency No. A213-612-126
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and HELLERSTEIN, ***
District Judge.
Edwin Alexander Molina Hernandez (“Petitioner”), a native and citizen of
*
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 Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
El Salvador, petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) upholding the immigration judge’s (“IJ”) denial of his claims for
withholding of removal and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. The BIA affirmed the IJ’s decision
without opinion, meaning that “the IJ’s decision becomes the BIA’s decision[,] and
we evaluate the IJ’s decision as we would that of the [BIA].” Lanza v. Ashcroft,
389 F.3d 917, 925 (9th Cir. 2004) (quotation marks omitted). We deny the petition
for review.
Petitioner testified that he was targeted by gang members in El Salvador on
account of his relationship with his cousin, with whom Petitioner lived. The
cousin, an MS-13 gang member, had begun an affair with the wife of a member of
a rival gang. Because of the affair, the rival gang’s members wanted to kill
Petitioner’s cousin, and on three separate occasions, they approached Petitioner to
ask about the cousin’s whereabouts. In the course of these incidents, the gang
members subjected Petitioner to beatings, threats, and other forms of physical
abuse, asking questions about his cousin and stating that “they wanted someone to
pay for what [the cousin] had done.” The gang members never found or hurt the
cousin, and about six weeks later, Petitioner and his cousin fled El Salvador
together for the United States. Petitioner testified that, in 2019, his friends told
him that the gang members “are still looking for [the cousin] to kill him.”
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The IJ denied Petitioner’s claim for withholding of removal. The IJ held
that Petitioner’s particular social group—family members of the cousin—lacked
social distinction and that, in any event, Petitioner had not established a nexus
between the harm and a protected ground because the gang members targeted
Petitioner only as a means of finding the cousin, not because they generally sought
to harm the cousin’s family. In the alternative, the IJ concluded that even if
Petitioner had suffered harm on account of his membership in his cousin’s family,
it was not more likely than not that Petitioner’s life or freedom would be
threatened in the future. We think substantial evidence supports this alternative
reasoning, and accordingly, we need not and do not reach the particular social
group or nexus issues.
The record does not compel the conclusion that Petitioner would more likely
than not suffer persecution in El Salvador, even if he relocated within the country.
See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (“Under [the
substantial evidence] standard, we must uphold the agency determination unless
the evidence compels a contrary conclusion.”). The IJ noted that the gang
members targeted Petitioner because he lived in the same house as his cousin, who
is now living in the United States, and that the record therefore suggested that
Petitioner could safely relocate to another household or another area, particularly
given that the cousin would remain in the United States. The IJ further noted that
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no evidence in the record indicated that the gang distributed information about
Petitioner to other gang members throughout the country. Although Petitioner
testified that gang members would remember him because he was a semi-
professional soccer player, the IJ found that assertion unlikely to be true given that
about fifteen years had passed between the violent attacks and the IJ’s adjudication
of Petitioner’s claims for relief. Finally, the IJ noted Petitioner’s testimony that,
since he and the cousin fled the country, the rival gang’s members had not harmed
any other members of the family who remained behind in El Salvador. We
conclude that the IJ’s determination was supported by substantial evidence in the
record.
Substantial evidence also supports the IJ’s determination that Petitioner is
not eligible for CAT protection. The IJ concluded that Petitioner had not
demonstrated that any torture would be “inflicted by, or at the instigation of, or
with the consent or acquiescence of, a public official acting in an official capacity
or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). The IJ
noted that Petitioner had not reported any of the gang’s criminal activity to the
police and that it was therefore impossible to know whether the police would have
acquiesced in his torture. Petitioner testified that the police are corrupt and that he
feared they would collaborate with the gangs, based on news reports of
collaboration that he had seen on television. He also submitted country conditions
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evidence detailing the Salvadoran government’s struggle to control gang violence
in the country. Petitioner’s evidence does not compel the conclusion, however,
that the Salvadoran government would acquiesce in his torture. See Andrade-
Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (noting that “a general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence”).
PETITION DENIED.
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