Petronilo Lopez Tomas v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETRONILO LOPEZ TOMAS; JENRRY No. 17-72868
ALEXIS LOPEZ TOMAS,
Agency Nos. A208-124-161
Petitioners, A208-124-163
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.
Petitioners Petronilo LopezTomas and Jenrry Lopez-Tomas, brothers and
native citizens of Guatemala, seek review of an order of the Board of Immigration
Appeals (BIA) denying their applications for asylum, withholding of removal, and
*
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).
protection under the Convention Against Torture (CAT). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
1. Petitioners’ challenge to the jurisdiction of the immigration court is
foreclosed by our opinion in United States v. Bastide-Hernandez, 39 F.4th 1187,
1188 (9th Cir. 2022) (en banc) (“[T]he failure of [a Notice to Appear] to include
time and date information does not deprive the immigration court of subject matter
jurisdiction.”). The Immigration Judge (IJ) thus had jurisdiction over Petitioners’
case even though they were served with Notices to Appear that did not specify the
time or date of their initial hearing.
2. Where the BIA agrees with the conclusions of the IJ, the Ninth Circuit
reviews both decisions. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293
(9th Cir. 2018). The agency’s decision is reviewed under the substantial evidence
standard, Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021),
which provides that the agency’s findings of fact are considered “conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.” Ruiz-
Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Zehatye v.
Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)).
To be eligible for asylum, Petitioners must show a well-founded fear of
persecution based on “race, religion, nationality, membership in a particular social
group, or political opinion.” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir.
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2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish past persecution, an
“applicant must show: (1) an incident, or incidents, that rise to the level of
persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and
(3) is committed by the government or forces the government is either ‘unable or
unwilling’ to control.” Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000).
We agree with the BIA that the threat and mistreatment received by
Petitioners did not rise to the level of past persecution. Petitioners’ cumulative
reports of persecution amount to two instances of robbery, one beating that
Petitioners did not claim left lasting injury, a possible gunshot in Jenrry’s direction,
and an unsubstantiated threat against their mother. These incidents, while
reprehensible, do not compel a finding of persecution. See Sharma,
9 F.4th at 1063 (holding that petitioner’s involuntary detention, verbal abuse, and
beating that did not result in lasting bodily injury did not compel a finding of past
persecution).
Moreover, Petitioners have not shown that their troubles were on account of
a statutorily protected ground. Petitioners claim membership in several social
groups: “family, indigenous, refusal to join a criminal organization, and witness to
crime.” “Refusal to join a criminal organization” lacks the requisite particularity
and social distinction necessary to constitute a particular social group. See Pirir-
Boc v. Holder, 750 F.3d 1077, 1083–84 (9th Cir. 2014) (recognizing that a
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particular social group must be socially distinct, such that society perceives
purported members to be part of a group); see also Barrios v. Holder, 581 F.3d
849, 854–55 (9th Cir. 2009) (noting that “resistance to gang membership is not a
protected ground”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081, 1093 (9th Cir. 2013) (en banc).
“Witnesses to a crime” has been recognized as a statutorily protected ground
where the witness has testified in court or become “highly visible and recognizable
by others in the country in question.” Henriquez-Rivas, 707 F.3d at 1092 (quoting
Matter of C-A-, 23 I&N Dec. 951, 960 (BIA 2006)). Here, the only crimes
allegedly witnessed by Petitioners were the threats and harm to Petitioners by the
Mara Salvatruchas gang (MS), which Petitioners declined to report to the police.
Thus, the record does not compel a finding that Petitioners’ witnessing of crimes
committed against them creates a cognizable social group.
While family membership and indigenousness involve immutable
characteristics that may constitute a particular social group, here the record does
not compel a finding that Petitioners were targeted “on account of” their
membership in either group. 8 U.S.C. § 1101(a)(42)(A). Rather, MS attempted to
recruit them and only harmed Petitioners when they refused to join. There is
nothing in the record to suggest any actions by MS against Petitioners were based
on their family ties or indigenousness.
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Finally, the record indicates that the harm Petitioners fear is that of general
criminal activity and harassment, but we have held that “random violence by gang
members bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010). Petitioners have failed to show that the record compels a
determination that they have been subject to past persecution.
3. Because Petitioners have not established a threat of persecution based on
their membership within a particular social group, they are ineligible for
withholding of removal. Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir.
2000) (“A failure to satisfy the lower standard of proof required to establish
eligibility for asylum . . . necessarily results in a failure to demonstrate eligibility
for withholding of deportation.”)
4. Petitioners are also not entitled to CAT relief because the record does not
compel a finding of “an objectively ‘reasonable possibility’ of persecution upon
return to the country.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir.
2019). As Petitioners did not report the incidents to the police, there is little
evidence that officials knew of or acquiesced in the gang’s activities. Also,
Petitioners do not allege that they took any actions against MS for which MS might
seek vengeance against them anywhere in Guatemala.
The petition is DENIED.
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