Marcos Morales-Herrera v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
OCT 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS MORALES-HERRERA, aka No. 14-70625
Marcos Morales-Chan,
Agency No. A095-120-545
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2016**
San Francisco, California
Before: GRABER and MURGUIA, Circuit Judges, and O’CONNELL,*** District
Judge.
Petitioner Marcos Morales-Herrera, a native and citizen of Guatemala,
petitions for review of an adverse decision of the Board of Immigration Appeals
*
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. Fed. R. App. P. 34(a)(2).
***
The Honorable Beverly Reid O’Connell, United States District Judge
for the Central District of California, sitting by designation.
(“BIA”). The BIA held that Petitioner was not entitled to withholding of removal
or protection under the Convention Against Torture (“CAT”). We deny the
petition.
1. The BIA did not err by failing to determine conclusively whether
physically disabled people or indigenous people constitute a “particular social
group.” Petitioner is disabled and is ethnically indigenous. The BIA assumed,
without deciding, that Petitioner therefore belongs to a “particular social group.”
But the BIA concluded that Petitioner had failed to demonstrate that the rape he
suffered in the past, or the retaliation he fears in the future, was or will be “on
account of” his disability or ethnicity. We review for substantial evidence. Ling
Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). The BIA permissibly
found that Petitioner was a victim of random criminal violence in the past and that
his fear is of general violence in his home country in the future.
2. The BIA did not err in characterizing the degree of economic hardship
that constitutes persecution. We review de novo the BIA’s legal conclusions,
though we may afford some deference to the agency’s interpretation of the statutes
that it administers. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). The
BIA’s decision here is consistent with its precedential case of In re T-Z-, 24 I. & N.
Dec. 163 (B.I.A. 2007), which discussed the extreme nature of persecution and
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adopted the term “severe” in connection with economic deprivation. And, as a
factual matter, the BIA permissibly concluded under that standard that the
economic deprivation Petitioner suffered in the past and would face again if
returned to Guatemala is not disproportionate to the general economic difficulties
faced by the populace there.
3. The BIA did not err by failing to consider the cumulative effect of the
harm that Petitioner faced, and might face again, in Guatemala. See Krotova v.
Gonzales, 416 F.3d 1080, 1084–87 (9th Cir. 2005) (discussing cumulative effect of
different harms). Although the BIA’s decision did not expressly describe a
cumulative analysis, its discussion is reasonably read to mean that the BIA
considered not only each individual harm, but also the cumulative effect of the
different harms.
4. Finally, the BIA ruled that Petitioner is not eligible for CAT relief
because he did not show that he more likely than not would be tortured by, or with
the acquiescence of, the Guatemalan government. He does not challenge that
conclusion.
PETITION DENIED.
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