Javier Garcia Martinez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVIER GARCIA MARTINEZ, No. 20-71507
Petitioner, Agency No. A205-467-268
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and MOLLOY,***
District Judge.
Javier Garcia Martinez seeks review of the Board of Immigration Appeals
(“BIA”) decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision
*
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 Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
that he is ineligible for withholding of removal or for relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we
review both the BIA and IJ decisions, see Bhattarai v. Lynch, 835 F.3d 1037, 1042
(9th Cir. 2016), under the “substantial evidence” standard, see INS v. Elias-Zacarias,
502 U.S. 478, 481, 483–84 (1992); Arbid v. Holder, 700 F.3d 379, 386 (9th Cir.
2012); Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir. 2008). We deny the petition
for review.
Substantial evidence supports the agency’s conclusion that Garcia Martinez
failed to show that he had suffered “past persecution,” which gives rise to a
presumption of future persecution. 8 C.F.R. § 1208.16(b)(1)(i). The two armed
robberies that Garcia Martinez endured in Mexico were reprehensible and
undoubtedly frightening, but he provides no evidence that compels the conclusion
that he was targeted because of his membership in a protected social group, nor does
he demonstrate that these incidents rise to the stringent standard of egregiousness
required to constitute persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059–60
(9th Cir. 2009).
Nor does the additional evidence of robberies and threats against Garcia
Martinez’s family members compel such a conclusion. Although harm inflicted
upon close family members may be evidence supporting a claim of past persecution,
see Tamang v. Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010), this harm must
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“create a pattern of persecution closely tied to the petitioner,” Arriaga-Barrientos v.
INS, 937 F.2d 411, 414 (9th Cir. 1991). In this case—where the threats to his family
were inconsistently tied to Garcia Martinez and occurred while he was living in the
United States—substantial evidence supports the IJ’s conclusion that Garcia
Martinez was the victim of “harassment by criminals motivated by theft,” which
“bears no nexus to a protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010); see also Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001)
(“[P]urely personal retribution is, of course, not persecution on account of [a
protected ground].”); Tamang, 598 F.3d at 1093 (“[H]aving already moved to the
United States at the time of the alleged persecution, Tamang was far removed from
the persecution that his [family] suffered and was not directly impacted in any
way.”).
Substantial evidence likewise supports the agency’s conclusion that Garcia
Martinez failed to show a clear probability of future persecution. 8 C.F.R. §
1208.16(b)(2). Garcia Martinez has provided no evidence of a nexus between the
threat of future robberies and a protected ground. See Zetino, 622 F.3d at 1016;
Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009), abrogated in part on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Further, the fact that his family in Mexico remains unharmed is “‘substantial
evidence’ supporting the Board’s finding that [Petitioner] lacks a well-founded fear
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of future persecution based on family membership.” Santos-Lemus v. Mukasey, 542
F.3d 738, 743–44 (9th Cir. 2008), abrogated in part on other grounds by Henriquez-
Rivas, 707 F.3d 1081.
Finally, substantial evidence supports the agency’s conclusion that Garcia
Martinez failed to show a clear probability of torture “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public official acting in an
official capacity or other person acting in an official capacity.” 8 C.F.R. §§
1208.16(c), 1208.17, 1208.18(a)(1). Garcia Martinez was not previously tortured in
Mexico. The threat of future robberies “does not provide a sufficient basis to
conclude that any harm … would rise to the level of torture.” Lopez v. Sessions, 901
F.3d 1071, 1078 (9th Cir. 2018). And Garcia Martinez has provided no
particularized evidence that any such harm will be inflicted by or with the complicity
of public officials, other than general statements about conditions in Mexico. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010).
PETITION DENIED.
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