Luis Alvarez Gutierrez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALVAREZ GUTIERREZ, AKA Luis No. 18-71234
A. Alvarez, AKA Carlos Alberto Alvarez 18-73059
Gutierrez, AKA Carlos Gutierrez Alvarez,
AKA Juan Carlos Quintero, Agency No. A095-797-327
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 7, 2023**
Pasadena, California
Before: BOGGS,*** IKUTA, and DESAI, Circuit Judges.
Luis Alvarez-Gutierrez appeals the determination of an immigration judge (IJ)
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
that he did not have a reasonable fear of persecution or torture in Mexico, his country
of origin. He also seeks review of the denial by the Board of Immigration Appeals
(BIA) of his motion to reopen proceedings in the case that led to his first removal.
Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petitions for review.
Alvarez-Gutierrez illegally reentered the United States in 2009. After the
Department of Homeland Security reinstated his prior order of removal, he said that
he was afraid to return to Mexico because of gang violence and threats against his
family members there. An asylum officer determined that Alvarez-Gutierrez did not
have a reasonable fear of persecution or torture, a prerequisite for relief, and an IJ
affirmed.
1. We review for substantial evidence the IJ’s negative reasonable-fear
determination. Orozco-Lopez v. Garland, 11 F.4th 764, 774 (9th Cir. 2021). Under
this standard, we must affirm unless Alvarez-Gutierrez has shown that the evidence
compels reversal. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).
Non-citizens whose prior orders of removal have been reinstated may be
eligible for withholding of removal and relief under the Convention Against Torture
(CAT). Andrade-Garcia v. Lynch, 828 F.3d 829, 830–32 (9th Cir. 2016). Before
they may present their claims to an IJ, they must convince an asylum officer or an IJ
that they have a “reasonable fear of persecution or torture.” 8 C.F.R. § 1208.31(c),
(g). To do so, they must establish a “reasonable possibility” that they would be
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persecuted on account of a protected ground or tortured in the country of removal.
Id. § 1208.31(c). A ten-percent chance of persecution or torture suffices, Alvarado-
Herrera v. Garland, 993 F.3d 1187, 1195, 1195 (9th Cir. 2021), but we require “a
good reason to fear future persecution based on credible, direct, and specific
evidence in the record.” Bartolome v. Sessions, 904 F.3d 803, 809 (9th Cir. 2018)
(quoting Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008)).
Non-citizens must also demonstrate that the government is responsible for the
harm that they fear, either because the government will persecute them or fail to
control those who persecute them, Reyes-Reyes v. Ashcroft, 384 F.3d 782, 788 (9th
Cir. 2004) (withholding), or because the government will torture them or acquiesce
in their torture by others, Andrade-Garcia, 828 F.3d at 836 (CAT).
Substantial evidence supports the IJ’s conclusion that Alvarez-Gutierrez has
not made the necessary showing. Assuming (without deciding) that Alvarez-
Gutierrez’s family is cognizable as a “particular social group”—the statutory ground
upon which he relies for relief—the record does not compel the conclusion that he
reasonably fears persecution because of his family ties. Alvarez-Gutierrez testified
that he was afraid that the same people that had attacked his father would attack him,
a fear corroborated by the threats that his family reported receiving after the attack
on his father. However, he also conceded that his family stopped receiving threats
after they reported the attack to the police. This concession also makes it unlikely
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that the Mexican government is responsible for, or will acquiesce in, the harm that
he fears, which is a requirement for relief. Alvarez-Gutierrez’s other fears—of
generalized gang violence, violence against returnees, and violence against those
perceived to be wealthy—are not cognizable under the Immigration and Nationality
Act and do not justify relief. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th
Cir. 2010) (per curiam); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir.
2016).
Nor does the evidence compel the conclusion that Alvarez-Gutierrez
reasonably fears torture in Mexico. By his own admission, the police have prevented
further harm or threats to his family. Thus, the record does not suggest that the
government is likely to torture Alvarez-Gutierrez or acquiesce in his torture by
others.
Alvarez-Gutierrez’s counterarguments are unavailing. First, he faults the IJ
for failing to determine whether his proposed particular social group was valid. But
Alvarez-Gutierrez failed to prove that his membership in that group was “a reason”
for the persecution he fears. See 8 U.S.C. § 1231(b)(3)(C). Accordingly, the IJ was
not required to assess his group’s validity. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976) (“As a general rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results they reach.”).
Second, Alvarez-Gutierrez claims that the IJ should have addressed whether
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the harm that his family suffered amounted to persecution. But such a determination,
too, was unnecessary, because Alvarez-Gutierrez does not argue that he suffered past
persecution and because his family members are not seeking relief.
Third, he claims that the police acquiesced in the harm to his father, which he
calls torture. But “[t]he inability to bring the criminals to justice is not evidence of
acquiescence[.]” Andrade-Garcia, 828 F.3d at 836. And there is no support in the
record for his allegation that the police—whose actions apparently prevented further
harm—had prior awareness of any torturous activity of the gangs. See ibid.
2. Alvarez-Gutierrez’s two opening briefs do not address the BIA’s denial of
his motion to reopen. This court does not ordinarily review issues not presented in
an opening brief, so we decline to review this issue. See Lopez-Vasquez v. Holder,
706 F.3d 1072, 1078–80 (9th Cir. 2013); Koerner v. Grigas, 328 F.3d 1039, 1048–
49 (9th Cir. 2003).
The petitions are DENIED.
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