JOSE HERNANDEZ-LOPEZ V. MERRICK GARLAND ( 2022 )

FILED
NOT FOR PUBLICATION
DEC 30 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE HERNANDEZ-LOPEZ, AKA Jose No. 17-73112
Hernandez, AKA Jose Hernandez Lopez,
AKA Jose Hernandezlopez, AKA Jose Agency No. A077-119-099
Lopez-Cruz,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2022**
Pasadena, California
Before: BEA, IKUTA, and CHRISTEN, Circuit Judges.
Petitioner Jose Hernandez-Lopez, a native and citizen of Mexico, timely
petitions for review from the denial of his application for withholding of removal
*
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).
and relief under the Convention Against Torture (CAT). An immigration judge
(IJ) denied petitioner’s application and the Board of Immigration Appeals (BIA)
dismissed his appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
deny the petition.
Because the parties are familiar with the facts, we do not recite them here.
When the BIA agrees with aspects of the IJ’s findings while adding its own
reasoning, the court reviews both decisions to the extent the BIA agreed with the
IJ’s conclusions. Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022).
The court reviews factual findings for substantial evidence and legal conclusions
de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
1. Substantial evidence supports the denial of petitioner’s request for
withholding of removal. The record does not compel a finding contrary to the IJ’s
and BIA’s determinations that the three incidents petitioner alleged, individually or
collectively, do not rise to the level of persecution. First, while physical harm can
constitute persecution, “a one-off physical beating d[oes] not compel a finding of
persecution, even if, in our independent view, a reasonable factfinder could
conclude such a beating rose to the level of persecution.” Aden v. Wilkinson, 989
F.3d 1073, 1082 (9th Cir. 2021); see Sharma v. Garland, 9 F.4th 1052, 1061 (9th
Cir. 2021). Second, absent any additional detail of confrontation or mistreatment
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accompanying the shopkeeper’s threat, the shopkeeper’s ambiguous statement that
there would be “problems” if petitioner returned to the store lacks the requisite
specificity to compel a past persecution finding. See, e.g., Sharma, 9 F.4th at
1062; Flores Molina, 37 F.4th at 634.
Substantial evidence also supports the IJ’s finding that petitioner did not
suffer persecution when his mother was denied medical care. Harm to family or
close friends may “contribute to a successful showing of past persecution,” only
when it is “part of a pattern of persecution closely tied to the petitioner himself.”
Sharma, 9 F.4th at 1062 (quotation marks and brackets omitted) (quoting Wakkary
v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009)). The clinics’ denial of medical
care, while discriminatory, is qualitatively different from the examples in this
court’s case law, which implicated patterns of violence—beatings, killings, and
threats—against family and friends in a way that was connected to or targeted at
the petitioner. See, e.g., Korablina v. INS, 158 F.3d 1038, 1042–43, 1045 (9th Cir.
1998); Wakkary, 558 F.3d at 1060. Moreover, the agency found that petitioner’s
mother recovered and continues to live in Mexico unharmed.
Substantial evidence supports the BIA’s determination that the cumulative
impact of these incidents did not rise to the level of past persecution. Petitioner
must establish that the relevant facts, “evaluated in combination with each other[,]
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. . . form a sufficiently negative portrait of the petitioner’s experience in his or her
own country that not only allows a finding of past persecution but requires it.”
Flores Molina, 37 F.4th at 636 (quoting Sharma, 9 F.4th at 1061). Petitioner does
not meet this threshold because the three incidents are distinguishable from the
“specific,” “repeated,” and “escalating” events that this court has recognized might
compel a finding of past persecution from several incidents collectively. See, e.g.,
id. at 636–37.
Substantial evidence also supports the IJ’s finding that petitioner failed to
establish it is more likely than not he would be persecuted because of a protected
ground. Before the IJ, petitioner relied in part on country condition reports. The IJ
and BIA recognized that the reports provided some evidence of discriminatory
treatment against indigenous groups in Mexico, but reasonably found that the
reports failed to establish a clear probability that petitioner himself would be
subjected to violence or future persecution. Moreover, the agency specifically
found that petitioner’s family has continued to live in Mexico unharmed.
We reject petitioner’s argument that the BIA should have held that he was a
member of a particular social group based on his indigenous heritage, because the
BIA denied his application on other grounds.
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2. Substantial evidence supports the denial of petitioner’s CAT claim.
Petitioner’s CAT arguments turn on the same evidence submitted in support of his
withholding claim (the three incidents and country condition reports), and the
agency’s finding that petitioner’s prior treatment was not torture is consistent with
this court’s case law. See, e.g., Kumar v. Gonzales, 444 F.3d 1043, 1055–56 (9th
Cir. 2006). The IJ’s and BIA’s conclusions that the reports failed to establish a
particularized threat of torture to petitioner is also supported by substantial
evidence. See, e.g., Mukulumbutu v. Barr, 977 F.3d 924, 927–28 (9th Cir. 2020).
Finally, we reject petitioner’s argument that he will be “tortured” because his
children will be deprived of healthcare if he is removed to Mexico. Substantial
evidence supports the agency’s contrary determination that petitioner did not show
it was more likely than not he would face torture were he to return to Mexico, and
we have recognized that generally, “a country’s failure to provide its citizens with
a particular level of medical care or education due to economic constraints is not
persecution,” see, e.g., Tchoukhrova v. Gonzales, 404 F.3d 1181, 1194 (9th Cir.
2005), vacated on other grounds, 549 U.S. 801 (2006); see also Nuru v. Gonzales,
404 F.3d 1207, 1224 (9th Cir. 2005) (“[T]orture is more severe than
persecution . . . .”).
PETITION DENIED.
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