Perez-Escobar v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Henry Giovani Perez-Escobar, No. 21-713
Petitioner, Agency No. A205-312-939
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 14, 2023**
Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
Henry Giovani Perez-Escobar, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (BIA) decision
denying his application for withholding of removal and protection under the
Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a). We review de novo questions of law. Ahmed v. Holder, 569 F.3d
*
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).
1009, 1012 (9th Cir. 2009). We review the agency’s factual findings for
substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th Cir.
2010). Because the parties are familiar with the facts, we recite only those
necessary to decide the petition.
As to withholding of removal, Perez-Escobar asserts that he was targeted
based on a particular social group defined by resisting recruitment by gangs.
But this court has made clear that general “resistance” to gang recruitment,
alone, is not a protected ground. See Barrios v. Holder, 581 F.3d 849, 855 (9th
Cir. 2009) (holding that “young men in Guatemala who resist gang recruitment”
was not a cognizable social group), abrogated in part on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc)
(distinguishing the social visibility of those who testify against gang members
in open court). The BIA correctly determined that Perez-Escobar’s proposed
social group was not cognizable. See 8 U.S.C. § 1231(b)(3)(A).
The BIA concluded that Perez-Escobar was ineligible for CAT relief
because he did not show he is more likely than not to be tortured if returned to
Guatemala. See 8 C.F.R. § 208.16(c)(2). It reached that conclusion because the
past violence Perez-Escobar experienced—a single fight in which he received a
two-inch stab wound on his arm—did not amount to torture and because Perez-
Escobar was able to safely relocate within Guatemala for several months after
the fight. This conclusion is supported by substantial evidence.
The motion for a stay of removal (Dkt. No. 3) is denied.
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PETITION DENIED.
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