Hernandez Gomez v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Gilber Miguel Hernandez Gomez, No. 21-111
Petitioner, Agency No. A200-952-534
v.
MEMORANDUM*
Merrick B. Garland, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2023**
Pasadena, California
Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.
Gilber Miguel Hernandez Gomez, a citizen of El Salvador, seeks review of
the Board of Immigration Appeals’ (BIA) decision denying him withholding of
removal and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252(a), see Ortiz-Alfaro v. Holder, 694 F.3d 955,
957 (9th Cir. 2012), and we deny the petition.
*
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).
Where, as here, the BIA adopts the Immigration Judge’s (IJ) reasoning in
addition to providing its own, we review both decisions. Hernandez v. Garland,
47 F.4th 908, 912 (9th Cir. 2022).
1. Withholding of Removal. Hernandez Gomez fails to make any
specific argument challenging the agency’s determination that his tattoo-based
particular social group (PSG) fails because it is not composed of members sharing
an immutable characteristic and because it is too broadly defined. He also fails to
make any specific challenge to the agency’s purported lack of analysis of either
of his two PSGs or to the agency’s determination that a gang targeted him for
purely criminal motives. These issues are dispositive. See, e.g., Barbosa v. Barr,
926 F.3d 1053, 1059 (9th Cir. 2019) (stating elements for withholding of
removal); Villegas Sanchez v. Garland, 990 F.3d 1173, 1180 (9th Cir. 2021)
(stating elements for cognizable PSG); cf. Arteaga v. Mukasey, 511 F.3d 940, 945
(9th Cir. 2007) (concluding that the group “[t]attooed gang member” was
overbroad). Hernandez Gomez has therefore forfeited an effective challenge to
the agency’s withholding of removal decision. See Iraheta-Martinez v. Garland,
12 F.4th 942, 959 (9th Cir. 2021) (finding petitioner forfeited argument “by
failing to develop [it] in his opening brief”); see also Martinez-Serrano v. INS,
94 F.3d 1256, 1259 (9th Cir. 1996).
2. CAT. A reasonable adjudicator would not be compelled to conclude
that Hernandez Gomez is entitled to relief under CAT because he is likely to be
tortured upon return to El Salvador. See Ponce v. Wilkinson, 987 F.3d 886, 890–
2
91 (9th Cir. 2021). Although Hernandez Gomez alleged substantial abuse from
the Salvadoran police and a notable gang, this past harm does not rise to the level
of torture and the evidence in the aggregate does not compel the conclusion that
Hernandez Gomez faces a particularized risk of future torture. See, e.g., Ahmed
v. Keisler, 504 F.3d 1183, 1201 (9th Cir. 2007) (while evidence compelled a
finding of persecution where petitioner was taken into custody and beaten on four
occasions, it did not compel a finding of likelihood of torture); Ruiz-Colmenares
v. Garland, 25 F.4th 742, 751 (9th Cir. 2022) (finding petitioner’s evidence,
including country conditions reports, failed to show petitioner faced a
particularized risk of torture); Del Cid Marroquin v. Lynch, 823 F.3d 933, 937
(9th Cir. 2016) (holding substantial evidence supported denial of CAT relief
where petitioner failed to establish the government tortures “those with gang-
related tattoos”).1
Finally, we deny Hernandez Gomez’s motion for a stay of removal.
PETITION DENIED.
1
To the extent Hernandez Gomez argues that the agency failed to consider
relevant evidence, these arguments fail as he has not “overcome the presumption”
that the agency “did review the evidence.” Larita-Martinez v. INS, 220 F.3d 1092,
1096 (9th Cir. 2000).
3