Gomez Perez v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILGER CECILIO GOMEZ PEREZ, No. 21-43
Agency No. A216-400-596
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2023**
San Francisco, California
Before: S.R. THOMAS and KOH, Circuit Judges, and RAKOFF,*** District
Judge.
On May 16, 2018, Petitioner Wilger Cecilio Gomez Perez (“Petitioner”), a
native and citizen of Guatemala, applied for asylum, withholding of removal, and
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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protection under the Convention Against Torture (“CAT”). The Immigration Judge
(“IJ”) assigned to Petitioner’s case denied his applications. Petitioner appealed to the
Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision and
dismissed Petitioner’s appeal, and then sought this Court’s review. Where, as here,
the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994), in its decision
and does not express disagreement with any part of the IJ’s decision, we review the
decisions of both the BIA and the IJ. See Kwong v. Holder, 671 F.3d 872, 876 (9th
Cir. 2011) (citing Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en
banc)). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. The first issue raised by Petitioner’s appeal is whether the BIA erred in
concluding that Petitioner failed to establish eligibility for asylum and withholding
of removal based on his membership in a particular social group. Petitioner asserts
that he is eligible for asylum and withholding of removal based on his membership
in the social group of “Guatemalan young men who attended the University of
Mariano Galvez and [are] perceived to be wealthy.”
Considering this issue de novo, Santos-Ponce v. Wilkinson, 987 F.3d 886, 890
(9th Cir. 2021), we find that Petitioner has failed to show that his proposed social
group is defined with particularity and is socially distinct within Guatemala. Reyes
v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (requiring that a particular social
group be “defined with particularity” and “socially distinct within the society in
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question”). Our conclusion is supported by precedents rejecting proposed particular
social groups based on perceived wealth. See, e.g., Barbosa v. Barr, 926 F.3d 1053,
1060 (9th Cir. 2019); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir.
2016). Additionally, Petitioner has not produced sufficient evidence that would show
that his proposed social group is perceived as distinct within Guatemalan society,
which is required as a matter of law. See Matter of M-E-V-G-, 26 I. & N. Dec. 227,
244 (B.I.A. 2014) (“[A] successful case will require evidence that . . . the proposed
particular social group . . . is set apart within the society in some significant way.
Evidence such as country conditions reports, expert witness testimony, and press
accounts of discriminatory laws and policies, historical animosities, and the like may
establish that a group exists and is perceived as ‘distinct’ or ‘other’ in a particular
society.”). Because Petitioner’s proposed particular social group is not cognizable,
his asylum and withholding claims necessarily fail.
2. The second issue is whether the BIA and the IJ erred in determining
that Petitioner did not meet his burden of establishing that, if removed, he would
suffer torture either inflicted, instigated, or acquiesced to by a public official in the
government of Guatemala. See 8 C.F.R. § 208.18(a)(1). We review for substantial
evidence the agency’s determination that Petitioner is not eligible for CAT
protection. Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).
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Here, the IJ found “nothing” in Petitioner’s declaration that suggested that the
Guatemalan government had harmed Petitioner in the past. The IJ also found no
indication that the Guatemalan government intended to instigate others into torturing
the Petitioner or to acquiesce to Petitioner’s torture. On the basis of these findings,
the IJ concluded that Petitioner had failed to establish that the government of
Guatemala would either inflict, instigate, or acquiesce to his torture. Our review of
the record does not compel a contrary conclusion. See Shrestha, 590 F.3d at 1048–
49. Thus, we affirm the IJ’s decision and the BIA’s dismissal of Petitioner’s appeal.
The petition is DENIED.
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