Erick Camarena 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NOT FOR PUBLICATION FILED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
ERICK MANUEL CAMARENA, No. 17-71771
Petitioner, Agency No. A205-022-904
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.
Erick Manuel Camarena (“Petitioner”) seeks review of the Board of
Immigration Appeals’ (“BIA”) order that dismissed his appeal of the immigration
judge’s (“IJ”) order which denied his application for withholding of removal. We
have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Respondent’s unopposed motion to submit this case on the briefs
without oral argument was granted in a Clerk order.
“Where, as here, the BIA agrees with the IJ’s reasoning, we review both
decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018).
“We review the agency’s factual findings under the ‘extremely deferential’
substantial-evidence standard, under which we treat such findings as ‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020)
(quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)); 8 U.S.C.
§ 1252(b)(4)(B). To be eligible for withholding of removal, Petitioner “must show
a ‘clear probability’ of persecution because of a protected ground,” which
“‘requires objective evidence that it is more likely than not that . . . [he] will be
subject to persecution upon deportation’” and that “a cognizable protected ground
is ‘a reason’ for future persecution.” Garcia v. Wilkinson, 988 F.3d 1136, 1146
(9th Cir. 2021) (citations omitted); see also 8 U.S.C. § 1231(b)(3)(A).
1. Petitioner, who has not suffered past persecution, argues that it is more
likely than not that he will be harmed by the terrorist organization Sendero
Luminoso if he returned to Peru because of an imputed anti-terrorist political
opinion. Petitioner testified that he fears returning to Peru because his neighbor, an
anti-terrorist activist, was murdered in 1996 when Petitioner was approximately 9
years old and resided in a town near Lima. Petitioner believes Sendero Luminoso
committed the murder because of the brutal manner in which the neighbor was
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killed. Petitioner’s mother was friends with the neighbor and worked with her and
other mothers in a group that prepared food for others in the town. Petitioner
testified that he and his mother left Peru because of the murder approximately eight
months later.
The BIA affirmed the IJ’s reasoning and holding that Petitioner did not
establish that it was more likely than not that he would be persecuted in Peru on
account of a protected ground. The IJ found “there is no evidence in the record
that the events of nearly 20 years ago would be imputed to [Petitioner] today as an
independent adult returning from the United States after living away from his
home country.” The IJ also found that Sendero Luminoso “is still active in some
parts of Peru, but the record does not support [Petitioner’s] claimed fear that it is
more likely than not that he would be harmed if he returns to Peru on account of
. . . the imputed political opinion.”
The evidence in the record does not compel us to disagree. Petitioner was a
child when his neighbor was murdered approximately 26 years ago. Petitioner has
not claimed that his mother was herself an anti-terrorist activist. And neither he
nor his mother were physically harmed for eight months following the murder
before they left Peru.
2. Petitioner also argues that he would be persecuted if he returned to Peru
because of his membership in a particular “social group that will be targeted by the
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Sendero Luminoso for extortion.” Petitioner testified that he believes Sendero
Luminoso would target him for kidnapping in part because “[t]hey would think
[that] I would have money since . . . I’ll be coming from [the United States].”
The BIA dismissed Petitioner’s claim for relief based on membership in a
particular social group targeted by Sendero Luminoso for extortion on the grounds
that Petitioner “waived” it by failing to raise the argument before the IJ and,
alternatively, because “the proposed particular social group is not cognizable under
the Act.”
Petitioner does not acknowledge or challenge the BIA’s holding that he
“waived” his argument, and therefore forfeits his claim based on membership in a
particular social group targeted for extortion by Sendero Luminoso. See Clark v.
Time Warner Cable, 523 F.3d 1110, 1116 (9th Cir. 2008) (“This court ‘will not
ordinarily consider matters on appeal that are not specifically and distinctly argued
in appellant’s opening brief.’” (quoting Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.
1998))). We also agree with the BIA’s alternative holding that Petitioner failed to
establish that he belongs to a cognizable particular social group. See Barbosa v.
Barr, 926 F.3d 1053, 1059–60 (9th Cir. 2019) (“[I]ndividuals ‘returning to Mexico
[from] the United States [who] are believed to be wealthy’” do not qualify as a
particular social group. (alterations in original)); Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1229 (9th Cir. 2016) (“[T]he proposed group of ‘imputed wealthy
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Americans’ is not a discrete class of persons recognized by society as a particular
social group.”).1
PETITION DENIED.
1
Petitioner’s brief mentions claims for asylum and protection under the
Convention Against Torture (“CAT”). In proceedings before the agency Petitioner
stated that he was not seeking asylum or protection under the CAT. Thus, to the
extent Petitioner raises claims to asylum and protection under the CAT now, we
lack jurisdiction to hear them and dismiss the petition. See Barron v. Ashcroft, 358
F.3d 674, 677–78 (9th Cir. 2004).
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