Mayen-Gamez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANTONIO MAYEN-GAMEZ, No. 21-62
Petitioner, Agency No. A098-486-289
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Submitted March 08, 2023**
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE,***
District Judge.
Jose Antonio Mayen-Gamez, a native and citizen of Guatemala, petitions
for review of an immigration judge’s (IJ) decision concurring in the negative
reasonable-fear determination of an asylum officer (AO).
*
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 Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
In 2017, the U.S. Department of Homeland Security reinstated
Mayen-Gamez’s 2004 order of removal. Because Mayen-Gamez expressed a fear
of returning to Guatemala, he was referred to an AO for a reasonable-fear
determination. The AO concluded that there was no qualifying reasonable fear,
and Mayen-Gamez sought review by the IJ, who concurred.
We have jurisdiction under 8 U.S.C. § 1252 because the IJ’s agreement
with the negative reasonable-fear determination rendered Mayen-Gamez’s
reinstatement order final. See Andrade-Garcia v. Lynch, 828 F.3d 829, 835–36
(9th Cir. 2016). We review factual findings underlying an IJ’s reasonable-fear
determination for substantial evidence and must uphold such determinations
“unless, based on the evidence, any reasonable adjudicator would be compelled
to conclude to the contrary.” Id. at 831, 833 (internal quotation marks and citation
omitted). We review questions of law de novo. See Arteaga v. Mukasey, 511
F.3d 940, 944 (9th Cir. 2007). We deny the petition in part and dismiss the
petition in part.
1. Concurring in the AO’s reasonable-fear determination, the IJ
appropriately found that Mayen-Gamez had not established a reasonable
possibility that he would be persecuted on account of a protected ground or that
he would be tortured in Guatemala.
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First, the IJ reasonably concluded that Mayen-Gamez did not suffer past
persecution.1 Mayen-Gamez had cows stolen four times between 2004 and 2017.
But he was never physically harmed during the thefts and did not testify to
experiencing any other harm in Guatemala. Though these incidents are
unfortunate, they do not rise to the level of persecution—an “extreme concept
that does not include every sort of treatment our society regards as offensive.”
Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (quoting Nagoulko v.
INS, 333 F.3d 1012, 1016 (9th Cir. 2003)).
Mayen-Gamez also fails to identify evidence demonstrating that there is a
reasonable possibility that he will suffer future persecution on account of a
protected ground. At most, Mayen-Gamez’s testimony describes a fear of
random violence or harm motivated by others’ desire to steal from him. Yet an
applicant’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.” Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
Second, substantial evidence supports the IJ’s negative determination as to
the reasonable fear of torture. The label “torture” is “reserved for extreme cruel
and inhuman treatment that results in severe pain or suffering.” Tzompantzi-
1
We would affirm the determination that Mayen-Gamez did not suffer past
persecution and is not likely to suffer future persecution under any standard of
review. Therefore, we need not address whether substantial evidence or a less
deferential standard should apply. See Fon v. Garland, 34 F.4th 810, 813 & n.1
(9th Cir. 2022).
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Salazar v. Garland, 32 F.4th 696, 706 (9th Cir. 2022). Mayen-Gamez has never
been tortured. Nuru v. Gonzales, 404 F.3d 1207, 1217 (9th Cir. 2005) (“Past
torture is the first factor we consider in evaluating the likelihood of future torture
. . . .”). And nothing in the record otherwise compels the conclusion that there is
a reasonable likelihood that he will be tortured in the future or that torture would
occur by or with the consent or acquiescence of the government. See Andrade-
Garcia, 828 F.3d at 836–37.
2. Mayen-Gamez also contends that his initial removal proceedings should
be reopened and terminated because he was never served with a compliant Notice
to Appear. He further argues that, for the same reasons, his prior in absentia order
of removal should be rescinded. Because Mayen-Gamez did not raise this
argument before the agency, we lack jurisdiction to review it. See Sola v. Holder,
720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam); 8 U.S.C. § 1252(d)(1).
PETITION DENIED in part; DISMISSED in part.
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