Elder Gutierrez-Bulux v. Jefferson Sessions ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 02 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELDER OSVALDO GUTIERREZ- No. 15-72021
BULUX, AKA Elder Gutierrez,
Agency No. A200-244-347
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 4, 2018
Pasadena, California
Before: FERNANDEZ and CHRISTEN, Circuit Judges, and MARSHALL,**
District Judge.
Elder Gutierrez-Bulux (Gutierrez), a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (BIA) order denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
claims for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition for review.1
1. The BIA did not err in denying Gutierrez asylum. “Asylum-seekers have
one year from the time of their entry into the United States to file an application for
asylum.” Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir. 2010) (citing 8 U.S.C. §
1158(a)(2)(B)). This deadline may be tolled if the claimant can demonstrate
“‘either the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating to the
delay in filing an application.’” Id. (quoting 8 U.S.C. § 1158(a)(2)(D)). Gutierrez
contends that he qualified for the latter exception because of his belief that asylum
could only be granted for political reasons. But “ignorance of the law is
[generally] no excuse.” Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir.
2003). The BIA’s decision was therefore supported by substantial evidence.
2. The BIA also did not err in denying Gutierrez withholding of removal.
“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
1
As the parties are familiar with the facts, we do not recount them here.
2
opinion.’” Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (quoting 8
U.S.C. § 1231(b)(3)). The petitioner must prove that it is more likely than not that
he or she will be persecuted on account of a protected ground. Ling Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).
Gutierrez argues that he is entitled to a presumption of eligibility for
withholding of removal because his written application and his testimony
demonstrate past persecution. He also insists that he testified truthfully. But
Gutierrez’s application made no mention of an arrest and detention allegedly
orchestrated by the Guatemalan police on trumped-up charges of theft. Only later
did Gutierrez recount, for the first time, the sexual assault he suffered at the hands
of prison inmates over the course of his four-day detention and the police’s willful
blindness to that assault. This is not a stray or trivial oversight. See Silva-Pereira
v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016). The incident in question
establishes the government’s acquiescence—even participation—in Gutierrez’s
persecution on account of his sexual orientation. See Zamanov v. Holder, 649 F.3d
969, 974 (9th Cir. 2011). The BIA’s refusal to credit Gutierrez’s testimony was
therefore supported by substantial evidence.
A petitioner who has not demonstrated past persecution may nevertheless
qualify for withholding of removal if he or she “show[s] that there is a systematic
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‘pattern or practice’ of persecution against the group to which he belongs in his
home country, such that, even without any evidence of individual targeting, his
fear of persecution is deemed reasonable.” Wakkary v. Holder, 558 F.3d 1049,
1060 (9th Cir. 2009). Gutierrez asserts membership in the particular social group
of male homosexuals in Guatemala. The IJ, however, found Gutierrez’s account of
his arrest and detention to be unreliable and thus had discretion to discount the rest
of Gutierrez’s testimony. Enying Li v. Holder, 738 F.3d 1160, 1164–65 (9th Cir.
2013). The IJ observed that there was “nothing but [Gutierrez’s] testimony to
conclude that he is a homosexual,” and Gutierrez’s counsel did not controvert this
statement despite being given an opportunity to do so.2 Moreover, while the
medical evidence established Gutierrez’s HIV-positive status, the record does not
compel a finding that AIDS sufferers were a persecuted social group in Guatemala.
Wakkary, 558 F.3d at 1061; cf. Bromfield v. Mukasey, 543 F.3d 1071, 1074 (9th
Cir. 2008); Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir. 2004).
3. Finally, the BIA did not err in denying Gutierrez CAT relief. “An
applicant qualifies for protection under [CAT] if he can show that if removed to his
native country, it is more likely than not that he would be tortured by public
2
Insofar as Gutierrez suggests that the government did not contest his
homosexuality, the argument was not presented to the BIA and we lack jurisdiction
to consider it. See Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014).
4
officials, or by private individuals with the government’s consent or acquiescence.”
Oyeniran v. Holder, 672 F.3d 800, 803 (9th Cir. 2012). “‘[A]wareness and willful
blindness’ are sufficient to constitute acquiescence by government officials; actual
knowledge or willful acceptance is not required.” Vitug v. Holder, 723 F.3d 1056,
1066 (9th Cir. 2013). “Unlike the standards for asylum and withholding of
removal, a petitioner ‘need not show that he will be tortured on account of a
protected ground’ to qualify for CAT relief.” C.J.L.G. v. Sessions, 880 F.3d 1122,
1150 (9th Cir. 2018). Gutierrez asserts that “there exist ‘substantial grounds for
believing’ . . . that he would be in danger of being tortured if returned to
Guatemala.” The BIA concluded that while it was possible the Guatemalan
government might acquiesce in the torture of someone who has contracted HIV,
this possibility did not meet the “more probable than not” standard required for
relief under CAT. The record does not compel the opposite conclusion. Vitug 723
F.3d at 1066; cf. Bosede v. Mukasey, 512 F.3d 946, 949, 951–52 (7th Cir. 2008).
PETITION DENIED.
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