Silvia Perez-Anaya v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA PEREZ-ANAYA, No. 19-73172
Petitioner, Agency No. A206-501-329
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2022**
San Francisco, California
Before: BEA, CHRISTEN, and BRESS, Circuit Judges.
Silvia Perez-Anaya, a citizen of Mexico, seeks review of a Board of
Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge
(IJ) order denying her applications for withholding of removal, cancellation of
*
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). In light of the Court’s previous
order dispensing with oral argument, Dkt. No. 32, the joint motion to submit the case
on the briefs, Dkt. No. 33, is denied as moot.
removal, and relief under the Convention Against Torture (CAT). We review for
substantial evidence and may grant relief only if the facts compel a contrary
conclusion. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). When the
BIA adopts the decision of the IJ as its final decision, we consider the IJ’s decision
as well. Ren v. Holder, 648 F.3d 1079, 1083 (9th Cir. 2011). We have jurisdiction
under 8 U.S.C. § 1252. We deny the petition in part and dismiss in part.
1. Substantial evidence supports the denial of withholding of removal.
“To qualify for withholding of removal, an alien must demonstrate that it is more
likely than not that he would be subject to persecution on one of the specified
protected grounds.” Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011)
(internal quotation marks and alteration omitted); see 8 U.S.C. § 1231(b)(3)(A).
Perez-Anaya claims membership in two particular social groups: (1) her family, and
(2) immediate relatives of Mexican government officials.
Assuming, as the IJ did, that these groups are cognizable, substantial evidence
supports the agency’s determination that Perez-Anaya did not show she would be
persecuted because of her membership in these groups. Perez-Anaya testified to
criminal incidents involving her brothers in Mexico, but “random” criminal acts “do
not amount to persecution.” Gormley v. Ashcroft, 364 F.3d 1172, 1180 (9th Cir.
2004). In addition, Perez-Anaya was never personally threatened or harmed when
she lived in Mexico, and some of her family members continue to live in Mexico
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unharmed. “The ongoing safety of family members in the petitioner’s native
country undermines a reasonable fear of future persecution.” Sharma v. Garland, 9
F.4th 1052, 1066 (9th Cir. 2021). Thus, substantial evidence supports the denial of
withholding of removal.
2. Substantial evidence also supports the denial of CAT relief. Perez-
Anaya has not demonstrated that “she will more likely than not be tortured with the
consent or acquiescence of a public official if removed to her native country.”
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). While Perez-Anaya
points to the experiences of her brothers in Mexico, she does not explain how those
experiences compel the conclusion that she would be tortured if returned to Mexico.
3. Cancellation of removal is available for non-citizens who meet certain
criteria if “removal would result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(1)(D). But we lack
jurisdiction over challenges to the IJ’s “subjective, discretionary determination that
a petitioner did not demonstrate exceptional and extremely unusual hardship,” and
can only review claims presenting a “colorable” legal issue. De Mercado v.
Mukasey, 566 F.3d 810, 815–16 (9th Cir. 2009) (internal quotation marks and
alteration omitted).
To the extent Perez-Anaya asks us to reevaluate the IJ’s hardship
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determination based on her husband’s health condition, we lack jurisdiction to
consider that argument. And Perez-Anaya does not point to any error of law in the
agency’s decision.
PETITION DENIED IN PART AND DISMISSED IN PART.
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