Pedro Hernandez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO SOLEDAD HERNANDEZ, No. 20-71178
Petitioner, Agency No. A095-786-336
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2022**
San Francisco, California
***
Before: O’SCANNLAIN and BUMATAY, Circuit Judges, and BAKER,
International Trade Judge.
Pedro Soledad Hernandez petitions for review of a Board of Immigration
Appeals (BIA) decision denying his applications for withholding of removal and
*
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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
protection under the Convention Against Torture (CAT). We have jurisdiction under
8 U.S.C. § 1252(a). We review the denial of relief under the deferential substantial
evidence standard, Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016), and
deny the petition.
1. Substantial evidence supports the denial of withholding of removal. To
qualify for withholding of removal, an applicant must show a clear probability of
future persecution “on account of” race, religion, nationality, political opinion, or
membership in a particular social group. Garcia v. Holder, 749 F.3d 785, 791 (9th
Cir. 2014) (simplified). The BIA affirmed the IJ’s conclusion that Soledad
Hernandez did not demonstrate that he was likely to be persecuted in Mexico on
account of his Nawat ancestry. The record does not compel a contrary conclusion.
Soledad Hernandez testified that he was beaten by gang members multiple times,
but he did not establish that the assaults were on account of his indigenous status.
See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be
free from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.”). Soledad Hernandez also testified
that his father and cousin were killed by unknown attackers, but he provided no
evidence that they were targeted because of their indigenous ancestry. And while
Soledad Hernandez contends that his family are “prisoners in their own home,” he
admitted that his brother “works and studies” and his sister is married and cleans
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houses. Cf. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004) (no well-founded
fear of future persecution where “Petitioners have several family members who
continue to live in Egypt and who have been able to obtain university educations and
employment after graduation”).
2. Substantial evidence also supports the denial of CAT relief. “To
qualify for CAT relief, an applicant must establish that he or she is more likely than
not to suffer intentionally-inflicted cruel and inhuman treatment if removed.”
Garcia, 749 F.3d at 791 (simplified). “Torture” is “an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture.” 8 C.F.R.§ 1208.18(a)(2).
The random violence Soledad Hernandez experienced at the hands of gang members
in Mexico, while unfortunate, does not rise to the level of torture. Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (holding that “generalized evidence of
violence and crime in Mexico . . . is insufficient to meet [the CAT] standard”). Also,
Soledad Hernandez testified that his mother and siblings safely remained and
worked in his hometown for many years after he left, which also supports the BIA’s
conclusion that he is not likely to be tortured. See Santos-Lemus v. Mukasey, 542
F.3d 738, 747–48 (9th Cir. 2008) (holding that the lack of harm to petitioner’s family
in his hometown constituted substantial evidence that petitioner was not more than
likely going to be tortured).
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3. We reject Soledad Hernandez’s argument that his case should be
remanded because the BIA allegedly did not consider the complete record. While it
is unclear what Soledad Hernandez claims was deficient with the record, we note
that the BIA specifically referenced the exhibit Soledad Hernandez highlighted as
not submitted to it, indicating that the BIA had access to, and duly considered, the
evidence in the record. The BIA is entitled to “the presumption of regularity” unless
an opposing party rebuts that presumption with “clear, affirmative evidence to the
contrary.” Gov’t of Guam v. Guerrero, 11 F.4th 1052, 1058 (9th Cir. 2021). Soledad
Hernandez fails to do so. Furthermore, to be entitled to a remand, Soledad
Hernandez must “show prejudice, which means that the outcome of the proceeding
may have been affected by the alleged violation.” Alanniz v. Barr, 924 F.3d 1061,
1068 (9th Cir. 2019) (quoting Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir.
2005)). Soledad Hernandez fails to show how any missing document could have
affected the outcome of his applications.
PETITION DENIED.
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