Hugo Petersen-Palma v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
APR 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGO PETERSEN-PALMA, AKA Hugo No. 12-72776
Leonel Petersen Palma,
Agency No. A021-551-663
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 1, 2015
Resubmitted April 28, 2016**
Pasadena, California
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,***
Senior District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Hugo Petersen-Palma, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision affirming the
denial of his application for withholding of removal under INA § 241(b)(3)(A) and
deferral of removal under the Convention Against Torture (“CAT”).1 We review
for substantial evidence the factual findings underlying the BIA’s denial of both
bases for relief from removal. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704
(9th Cir. 2010) (CAT); Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010)
(withholding of removal). We have jurisdiction pursuant to 8 U.S.C. § 1252 and
deny the petition for review.
I
Substantial evidence supports the BIA’s denial of withholding of removal.
Petersen-Palma failed to establish that “it is more likely than not that he would be
subject to persecution” on account of a protected ground. See Al-Harbi v. INS, 242
F.3d 882, 888 (9th Cir. 2001) (quoting INS v. Stevic, 467 U.S. 407, 429–30
(1984)). Tattooed former gang members do not constitute a particular social
1
We held this case in abeyance while the United States District Court for the
Southern District of California adjudicated Petersen-Palma’s claim to United States
citizenship. Because the district court concluded that Petersen-Palma is a citizen of
Guatemala, not of the United States, we now reach Petersen-Palma’s remaining
claims for relief from removal. See Petersen-Palma v. Lynch, No. 3:15-cv-1313-
H-JMA (S.D. Cal. Dec. 16, 2015).
2
group, Arteaga v. Mukasey, 511 F.3d 940, 945–46 (9th Cir. 2007), and resisting
gang recruitment alone does not constitute a protected political opinion, Santos-
Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008), abrogated on other grounds
by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Petersen-
Palma cannot avoid these precedents by solely reframing the issue as one of
imputed political opinion. See Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir.
2011) (per curiam).
II
Substantial evidence supports the BIA’s denial of deferral of removal under
CAT. The BIA considered all the evidence, including Petersen-Palma’s testimony
and the State Department country condition report. See Cole v. Holder, 659 F.3d
762, 771–72 (9th Cir. 2011) (remanding where BIA failed to consider evidence
regarding gang-related violence directed toward individuals with gang-related
tattoos). Almost all of the evidence Petersen-Palma provided was either
speculative or addressed gang-related violence directed toward youth. That
evidence does not compel the conclusion that it is “more likely than not” that
Petersen-Palma, who is over forty-five years old, will be tortured upon removal
either by or with the acquiescence of the Guatemalan government. See Andrade v.
Lynch, 798 F.3d 1242, 1245 (9th Cir. 2015) (per curiam) (concluding that Ninth
3
Circuit precedent “does not establish that any tattoos are enough to justify
Convention Against Torture relief”); United States v. Reyes-Bonilla, 671 F.3d
1036, 1051–52 (9th Cir. 2012) (concluding that petitioner failed to establish the
type of widespread gang-related abuse in Gautemala “that would support CAT
relief based on country conditions alone”).
PETITION DENIED.
4