Juan De La Rosa-Trinidad v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN DE LA ROSA-TRINIDAD, AKA No. 17-71147
Aldolfo Delarosa,
Agency No. A098-251-813
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2020**
San Francisco, California
Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,***
District Judge.
An Immigration Judge (“IJ”) denied Petitioner’s application for withholding
of removal, and the Board of Immigration Appeals (“BIA”) dismissed Petitioner’s
*
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 Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
appeal. Petitioner now seeks review of the BIA decision. Petitioner’s basis for
seeking withholding is race-based persecution. He alleges that he has been
persecuted as an Afro-Mexican and that he fears continuing persecution if he
returns to Mexico. We have jurisdiction under 8 U.S.C. § 1252, and we review the
BIA decision under a substantial evidence standard. Al-Harbi v. INS, 242 F.3d 882,
888 (9th Cir. 2001).
We find that substantial evidence supports the BIA decision and deny the
petition for review. Petitioner failed to establish that the past discrimination he
experienced in Mexico amounted to persecution. He testified to several instances
of discrimination, including one when he was jailed over a weekend without food
or water while police investigated his citizenship—although other jailed prisoners,
who were not Afro-Mexican and allegedly committed various other crimes, were
treated the same way. He also testified he was repeatedly questioned by police
about his nationality and forced to sing the Mexican national anthem to prove his
nationality when he travelled from his hometown to Mexico City. He admitted that
his cousin, who was also Afro-Mexican but had a slightly lighter complexion, was
not questioned as much “because he had his electoral ID with him” while
Petitioner was a minor and did not have an electoral ID.
Those instances of discrimination against Petitioner by the Mexican
government, while unfortunate and inexcusable, do not compel a finding of past
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persecution. See Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (finding that
a five or six-day imprisonment, without mistreatment, did not constitute
persecution); Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir. 2000) (repeated
questioning by police did not constitute persecution).
The other instances of discrimination that Petitioner suffered—bullying in
school, being chased by a group of men in Mexico City, a low wage at his
hometown job, and trouble finding work in Mexico City—cannot constitute
persecution for purposes of withholding because they were not committed by the
Mexican government or persons whom Petitioner demonstrated the Mexican
government was unwilling or unable to control. Mansour v. Ashcroft, 390 F.3d
667, 672 (9th Cir. 2004) (quoting Singh v. INS, 134 F.3d 962, 967 n.9 (9th Cir.
1998)).
Further, Petitioner’s articles about widespread discrimination against
Afro-Mexicans in Mexico do not demonstrate, much less compel, a finding that “it
is ‘more likely than not’ that [he] would be subject to persecution on account of
one of the protected grounds” if deported to Mexico. Tamang v. Holder, 598 F.3d
1083, 1091 (9th Cir. 2010) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 429
(1987)). His fear of future persecution is undermined by his family’s continued
safe presence in Mexico. Tamang, 598 F.3d at 1094 (quoting Sinha v. Holder, 564
F.3d 1015, 1022 (9th Cir. 2009)).
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PETITION FOR REVIEW DENIED.
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