Edwin Hernandez-Reyes v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN HERNANDEZ-REYES, No. 19-70893
Petitioner, Agency No. A206-756-809
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2021**
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.
Edwin Hernandez-Reyes, a Guatemalan native and citizen, petitions for
review of the Board of Immigration Appeals’ (BIA) denial of his applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and, reviewing the
*
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).
BIA’s legal conclusions de novo and its factual findings for substantial evidence,
we deny the petition.
The BIA did not err in rejecting as insufficiently particular or distinct
Hernandez-Reyes’s proposed social groups—“young males of Barberena,
Guatemala who do not align themselves” with gangs and “potential witnesses
against gang activity.” Indeed, we have rejected nearly identical groups on these
grounds before. See, e.g., Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir. 2009)
(“young males in Guatemala who are targeted for gang recruitment but refuse”
lacked particularity), abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d
1081 (9th Cir. 2013) (en banc); Santos-Lemus v. Mukasey, 542 F.3d 738, 744-46
(9th Cir. 2008) (“young men in El Salvador resisting gang violence” lacked
particularity), abrogated in part by Henriquez-Rivas, 707 F.3d 1081; Conde
Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020) (“[Guatemalans] who report
the criminal activity of gangs to the police” lacked social distinction). Hernandez-
Reyes likens his case to Henriquez-Rivas, 707 F.3d 1081, which concerned
witnesses who publicly testify against gangs in court. Here, however, Hernandez-
Reyes only reported an incident to the police, and the record lacks evidence of
Guatemalan society viewing his proposed groups as somehow set apart from the
general population.
Nor does the record compel the conclusion that gang members ever
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persecuted Hernandez-Reyes for holding an anti-gang political opinion. Rather, by
his own account the gang focused on him as a potential recruit, and his refusal to
acquiesce to their advances does not constitute a political opinion. See INS v.
Elias-Zacarias, 502 U.S. 478, 482-84 (1992); Barrios, 581 F.3d at 855-56(rejecting the argument that a “general aversion” to gangs qualifies as a political
opinion (quoting Santos-Lemus, 542 F.3d at 747)). Without evidence that he was
harmed on account of a protected ground, Hernandez-Reyes’s asylum and
withholding claims fail.
Substantial evidence also supports the agency’s denial of Hernandez-
Reyes’s CAT claim. Given that he safely lived in Guatemala for several months
after the gang last threatened him, and relocated without incident to a different
town for several months between the threats, the agency reasonably concluded that
he does not face a likelihood of torture in Guatemala. See 8 C.F.R.
§ 1208.16(c)(3)(ii). Although the country reports document the country’s gang
violence, they do not establish that the violence poses a particularized risk to
Hernandez-Reyes. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008)
(per curiam).
PETITION DENIED.
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