Marco Martinez-Seren v. Eric Holder, Jr. , 607 F. App'x 643 ( 2015 )

FILED
NOT FOR PUBLICATION APR 14 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO MARTINEZ-SEREN, No. 12-71816
Petitioner, Agency No. A200-115-388
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2015**
Seattle Washington
Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.
Petitioner Marco Martinez-Seren (“Martinez-Seren”) a native of Honduras
petitions for review the Board of Immigration of Appeals’ (“BIA”) denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for asylum and withholding of removal. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
“The BIA’s determination of purely legal questions is reviewed de novo.”
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009) (internal quotation
marks omitted). The BIA’s findings of fact are reviewed for substantial evidence
and “are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Jie Cui v. Holder,
712 F.3d 1332, 1336 (9th Cir. 2013). To reverse the BIA’s decision, the petitioner
must show that “‘the evidence not only supports that conclusion, but compels it.’”
Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002) (quoting Sangha v.
I.N.S., 103 F.3d 1482, 1487 (9th Cir. 1997)) (italics omitted).
1. The BIA was not compelled to find that Martinez-Seren’s familial
membership was a central reason for his persecution. “[T]he applicant must
establish that race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see also Parussimova v. Mukasey, 555
F.3d 734, 739 (9th Cir. 2008). There was no indication that Martinez-Seren’s
relationship to his sister motivated the attack on him. Rather, as the BIA correctly
identified, and as Martinez-Seren testified, he was targeted by a gang for reporting
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them to the police. Martinez-Seren’s status as a brother appears fortuitous; the
gang would have retaliated against him for reporting them to the police if he had
been an acquaintance or a stranger. While it is true that Martinez-Seren’s motive
in reporting the assault to the police may have been his close relationship to his
sister, case law has clarified that it is the persecutor’s motive that is paramount.
See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013) (en banc)
(“[I]n the context of persecution, we believe that the perception of the persecutors
may matter the most.”). Thus, the BIA did not err in finding that Martinez-Seren
did not suffer persecution on account of his familial relationship.
2. Nor was the BIA compelled to find that Martinez-Seren had a well-
founded fear of future persecution. “To demonstrate a well-founded fear of future
persecution, the alien must establish that her fear is both subjectively genuine and
objectively reasonable.” Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007).
“An applicant’s claim of persecution upon return is weakened, even undercut,
when similarly-situated family members continue to live in the country without
incident.” Hakeem v. I.N.S., 273 F.3d 812, 816 (9th Cir. 2001), superseded by
statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th
Cir. 2007); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 743–44 (9th Cir.
2008) (“[T]he fact that a family member has remained unharmed since he left El
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Salvador is ‘substantial evidence’ supporting the Board's finding that
Santos–Lemus lacks a well-founded fear of future persecution based on family
membership.”), overruled on other grounds by Henriquez-Rivas, 707 F.3d at 1093.
Here, the BIA concluded that Martinez-Seren’s fear was not objectively
reasonable given that his older sister, brother-in-law and brother lived in Honduras
relatively unharmed. Furthermore, the presence of a police station and lessened
interest by the gang in Martinez-Seren’s whereabouts support the BIA’s decision.
Although the BIA could have found that Martinez-Seren had a well-founded fear
of future persecution, it was not compelled to. See Molina-Estrada, 293 F.3d at
1095. Thus, the BIA’s factual findings are supported by substantial evidence.
PETITION FOR REVIEW DENIED.
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