Nelson Gonsalez Padilla v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON SAUL GONSALEZ PADILLA, No. 19-72089
Petitioner, Agency No. A205-311-768
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 8, 2020**
Pasadena, California
Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.
An immigration judge (“IJ”) ordered Nelson Saul Gonsalez Padilla removed
for being an “alien present in the United States without being admitted or paroled.”
8 U.S.C. § 1182(a)(6)(A)(i). Padilla conceded removability but unsuccessfully
sought asylum, withholding of removal, protection under the Convention Against
*
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).
Torture (“CAT”), and cancellation of removal. The Board of Immigration Appeals
(“BIA”) dismissed Padilla’s appeal. We deny Padilla’s petition for review.
1. Asylum applications must be filed within one year of the alien’s
arrival to the United States. 8 U.S.C. § 1158(a)(2)(B). Padilla arrived in October
2002 but did not file an application until February 2014. Although an untimely
application can be excused if the applicant shows “changed circumstances which
materially affect [his] eligibility for asylum,” 8 U.S.C. § 1158(a)(2)(D), substantial
evidence supports the BIA’s determination that Padilla has not made that showing
here. See Al Ramahi v. Holder, 725 F.3d 1133, 1137–38 (9th Cir. 2013)
(reviewing for substantial evidence).1 The evidence relied on by Padilla simply
describes the conditions of Honduras and Guatemala and the generalized violence
those countries experience. For example, Padilla references a report of a “spike in
homicide rates” in Guatemala. But substantial evidence supports the BIA’s
conclusion that this does not represent a “material change” in conditions. Nor is
the fact that Padilla was placed into removal proceedings a “changed
circumstance,” which refers to “circumstances materially affecting the applicant’s
eligibility for asylum.” 8 C.F.R. § 1208.4(a)(4)(i) (emphasis added). That Padilla
1
We have jurisdiction over petitions for review of the “BIA’s application of the
changed or extraordinary circumstances exception when the historical facts are
undisputed.” Al Ramahi, 725 F.3d at 1138 (citing Ramadan v. Gonzales, 479 F.3d
646, 650 (9th Cir. 2007)). Here, the underlying facts are not in dispute.
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claims he became more acutely aware of the fact that he might be deported after
the initiation of removal proceedings does not affect his eligibility for asylum.
2. For withholding of removal, Padilla had to demonstrate that he would
more likely than not face persecution on account of his “membership in a particular
social group.” Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017).
Substantial evidence supports the BIA’s determination that neither of Padilla’s
proposed social groups—“family members of individuals extorted by the 18th
Street gang” in Honduras and “Honduran nationals who relocate to Guatemala and
open their own business there”—are “‘sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of persons.’” Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc) (quoting Matter of
S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008)); see also Diaz-Torres v. Barr, 963
F.3d 976, 980 (9th Cir. 2020) (finding relevant “[e]vidence such as country
conditions reports, expert witness testimony, and press accounts of discriminatory
laws and policies, historical animosities, and the like” to establish “distinct” group
exists).2
Substantial evidence also supports the BIA’s conclusion that any persecution
2
Padilla’s reliance on Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015), is unavailing.
In Rios, we merely recognized that “family” could be the basis of a particular
social group and it was error to not even consider it. 807 F.3d at 1128. Here, the
BIA considered Padilla’s family-based social group and concluded he did not
sufficiently establish particularity.
3
was not on account of Padilla’s membership in a proposed social group. The
evidence does not compel the conclusion that membership in these groups
motivated the gang violence Padilla experienced. Barajas-Romero, 846 F.3d at
358–59 (holding that persecution must be motivated “at least in part” by the
protected ground for withholding of removal claim). Nothing compels us to
contradict the BIA’s conclusion that Padilla was subjected to harm from “gang
violence or criminal activity.” 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.”).
3. Substantial evidence also supports the BIA’s determination that, for
purposes of CAT relief, Padilla has not shown that it is “more likely than not” that
he would be “tortured if removed” to Honduras or Guatemala. Unuakhaulu v.
Gonzales, 416 F.3d 931, 939 (9th Cir. 2005). Although Padilla relies on two
beatings at the hands of gang members in Honduras and Guatemala to establish
past torture, he presents no evidence he was targeted for the beatings by gangs.
“[G]eneralized evidence of violence and crime” in the country of removal is
insufficient to establish eligibility for CAT protection. Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (finding petitioners’ generalized evidence of
violent crime “not particular” to petitioners and insufficient to establish CAT
4
eligibility).3
4. Padilla is ineligible for cancellation of removal because of his prior
conviction under California Penal Code § 273.5 for “willfully inflict[ing] corporal
injury” on his partner. See Carrillo v. Holder, 781 F.3d 1155, 1157–59 (9th Cir.
2015) (holding that Cal. Penal Code § 273.5 is categorically a “crime of domestic
violence” under 8 U.S.C. § 1227(a)(2)(E)(i)).
Padilla’s petition for review is DENIED. Padilla’s motion for a stay of
removal pending this court’s decision is DENIED as MOOT.
3
Even if he could show a likelihood of torture, substantial evidence also supports
the BIA’s determination that Padilla has not shown government acquiescence,
since his own evidence indicates that the police in both countries took action to
investigate the crimes after he reported them. See Barajas-Romero, 846 F.3d at
363 (“CAT relief is unavailable, despite a likelihood of torture, without evidence
that the police are unwilling or unable to oppose the crime, not just that they are
unable to solve it[.]”).
5