Tomas-Ramirez 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NOT FOR PUBLICATION FILED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
Arnulfo Tomas-Ramirez, No. 21-656
Petitioner, Agency No. A213-613-299
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
Pasadena, California
Before: GILMAN***, FORREST, and H.A. THOMAS, Circuit Judges.
Petitioner Arnulfo Tomas-Ramirez, a native and citizen of Guatemala,
seeks review of the Board of Immigration Appeals’ (BIA) denial of his
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
application for withholding of removal. 1 We have jurisdiction under 8 U.S.C.
§ 1252(a), and we deny the petition.
Where, as here, the BIA conducts its own review of the evidence and law,
our “review is limited to the BIA’s decision, except to the extent the [Immigration
Judge’s] opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909, 911 (9th
Cir. 2020) (citation omitted). We review the “BIA’s legal conclusions de novo
and its factual findings for substantial evidence.” Garcia v. Wilkinson, 988 F.3d
1136, 1142 (9th Cir. 2021) (internal quotation marks and citation omitted).
Substantial evidence supports the BIA’s determination that Tomas-
Ramirez would not be persecuted on account of any protected ground if removed
to Guatemala. Tomas-Ramirez claims that he will be persecuted in Guatemala
based on his Mayan ethnicity and family membership. Like the BIA, we assume
that these two proposed social groups are cognizable. Regarding his social group
based on ethnicity, Tomas-Ramirez presented evidence that as a child he suffered
discrimination and harassment by a schoolteacher because he is Mayan.
Persecution, however, “is an extreme concept that means something considerably
more than discrimination or harassment.” Sharma v. Garland, 9 F.4th 1052, 1060
(9th Cir. 2021). The record does not compel the conclusion that the mistreatment
1
Because Tomas-Ramirez does not appeal the agency’s denial of his due
process claim or its denial of his requests for asylum, protection under the
Convention Against Torture, and voluntary departure, he has forfeited any
challenge related to those claims. See Iraheta-Martinez v. Garland, 12 F.4th 942,
959 (9th Cir. 2021) (failure to develop argument in opening brief constitutes
forfeiture).
2 21-656
Tomas-Ramirez faced as a child rose to the level of persecution. See Mansour v.
Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (“[A]s morally reprehensible as it
may be,” discrimination based on race “does not ordinarily amount to
‘persecution.’”).
Turning to his family social group, Tomas-Ramirez fears returning to
Guatemala based on mistreatment that his mother and sister suffered in
connection with their opposition to the construction of a hydroelectric dam near
their town. The harm that his mother and sister suffered occurred after he left
Guatemala, and the dam construction ceased in 2016. There is no evidence that
anyone would seek to harm him if he returned to Guatemala. See Tamang v.
Holder, 598 F.3d 1083, 1091–92 (9th Cir. 2010) (concluding that the petitioner,
“who was not in the country at the time he claims to have suffered past
persecution,” could not show past persecution based on harm to his family
because “harm to others may [not] substitute for harm to an applicant”). He does
not allege that anyone has threatened him in connection with his family members
or their opposition to the dam, making the possibility of such harm speculative.
See Sharma, 9 F.4th at 1065 (finding possibility of future persecution
“speculative”). Notably, Tomas-Ramirez has not lived in Guatemala since 2012,
and that his father and three of his siblings still live there safely undermines the
reasonableness of his claimed fear of future persecution. See id. at 1066.
Finally, Tomas-Ramirez claimed before the agency that he was persecuted
by the MS-13 gang when he was young after refusing to participate in gang
3 21-656
activities. Even assuming that he has not forfeited this argument by not raising it
in his brief to this court, the record does not compel the conclusion that any such
persecution was on account of Tomas-Ramirez’s ethnicity or family association.
PETITION DENIED.
4 21-656