Perez-Barajas v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUMBERTO PEREZ-BARAJAS, No. 22-165
Petitioner, Agency No. A077-165-294
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 07, 2023**
San Francisco, California
Before: FRIEDLAND and NELSON, Circuit Judges, and KATZMANN,***
Judge.
Humberto Perez-Barajas, a Mexican native and citizen, petitions for review
of the Board of Immigration Appeals’ (BIA) affirmance of an Immigration
Judge’s (IJ) denial of his applications for withholding of removal under the
*
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 Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
Immigration and Nationality Act (INA) and the Convention Against Torture
(CAT). “We have jurisdiction under 8 U.S.C. § 1252 to review final orders of
removal,” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and deny the
petition.
“We review the BIA’s denials of . . . withholding of removal[ ] and CAT
relief for ‘substantial evidence’ and will uphold a denial supported by
‘reasonable, substantial, and probative evidence on the record considered as a
whole.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting
Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010)). “Where the BIA
issues its own decision but relies in part on the immigration judge’s reasoning,
we review both decisions.” Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014)
(quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012)).
1. Perez-Barajas contends that the BIA and IJ erred in determining that
his family was not a particular social group and that he could safely return to
Mexico. “Withholding of removal requires the petitioner to demonstrate his or
her ‘life or freedom would be threatened in that country because of the
[petitioner’s] race, religion, nationality, membership in a particular social group,
or political opinion.’” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010)
(alteration in original) (quoting 8 U.S.C. § 1231(b)(3)). A petitioner can meet
this standard by showing past persecution that “establish[es] a presumption of
fear of future persecution” or “through an independent showing of clear
probability of future persecution.” Id.2 22-165
Substantial evidence supports the BIA and IJ’s determination that
Perez-Barajas did not experience past persecution. Persecution “is an extreme
concept that means something considerably more than discrimination or
harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (citation
omitted). The IJ explained that Perez-Barajas was not persecuted because he has
not been physically harmed and any threats against his family following his
father’s murder were unfulfilled. See id. at 1062 (“Mere threats, without more,
do not necessarily compel a finding of past persecution.” (cleaned up and citation
omitted)).
Moreover, the BIA correctly affirmed the IJ’s determination that Perez-
Barajas does not face a clear probability of future persecution. The BIA noted
that Perez-Barajas’s family members—who were also threatened—have
continued to live in the same town as the individual who murdered petitioner’s
father without harm. Sinha v. Holder, 564 F.3d 1015, 1022 (9th Cir. 2009) (“[A]
petitioner’s fear of future persecution is weakened, even undercut, when
similarly-situated family members living in the petitioner’s home country are not
harmed.” (emphasis in original) (internal quotation marks and citation omitted)).
To the extent Perez-Barajas fears persecution by cartels, that petitioner has
returned to Mexico on multiple occasions without harm and could reasonably
relocate to Tijuana, where he previously lived without persecution, is dispositive
of his claim for withholding of removal under the INA. See Akosung v. Barr, 970
F.3d 1095, 1101 (9th Cir. 2020) (withholding of removal is unavailable if
3 22-165
applicant could avoid persecution through relocation and it is reasonable to expect
applicant to do so).
2. Perez-Barajas next asserts that the BIA and IJ erred in concluding
that he is not eligible for CAT relief. CAT relief requires a showing that “it is
more likely than not that [the petitioner] would be tortured if removed to the
proposed country of removal” and that the torture is inflicted by, at the instigation
of, or with the consent or acquiescence of a public official. Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 894 (9th Cir. 2018) (quoting 8 C.F.R. § 1208.16(c)(2)).
That the perpetrator was imprisoned following the murder of Perez-
Barajas’s father shows that the government did not instigate or acquiesce in
torture, as required under 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Moreover,
as previously noted, substantial evidence supports the BIA and IJ’s determination
that Perez-Barajas could safely and reasonably relocate within Mexico. See
Tzompantzi-Salazar v. Garland, 32 F.4th 696, 704–05 (9th Cir. 2022) (the ability
to relocate is sufficient to deny relief under CAT). Perez-Barajas is therefore not
entitled to relief on his CAT claim.
The petition for review and motion to stay removal (Dkt. No. 3) are
DENIED.
4 22-165