Nancy Mena-Juarez v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY MENA-JUAREZ et al., No. 18-71635
Petitioners, Agency Nos. A094-798-502
A094-798-503
v.
MEMORANDUM*
WILLIAM BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2020**
Honolulu, Hawaii
Before: WALLACE, BEA, and BENNETT, Circuit Judges.
Nancy Beatriz Mena-Juarez and her minor son, natives and citizens of
Guatemala, petition for review of a Board of Immigration Appeals (BIA) decision
affirming an order by an immigration judge (IJ) denying their applications for
withholding of removal and protection under the Convention Against Torture
*
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).
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(CAT). We have jurisdiction under 8 U.S.C. § 1252.
Applying the standard enacted by the REAL ID Act, we review for substantial
evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Duran-Rodriguez v. Barr, 918
F.3d 1025, 1028 (9th Cir. 2019) (reviewing denial of withholding of removal and
CAT claims for substantial evidence and explaining that “we must uphold the agency
determination unless the evidence compels a contrary conclusion”); Shrestha v.
Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010) (reviewing factual findings for
substantial evidence). “Where, as here, the BIA agrees with and incorporates
specific findings of the IJ while adding its own reasoning, we review [the] decisions”
from both the IJ and BIA (collectively, the “Agency”). Bhattarai v. Lynch, 835 F.3d
1037, 1042 (9th Cir. 2016).
1. Mena-Juarez bears the burden of proving eligibility for withholding of
removal and must demonstrate that she “is unable or unwilling to return to [her
country of nationality] ‘because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion.’” Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013) (quoting 8
U.S.C. § 1101(a)(42)(A)). We have observed before that “[p]ersecution is
an extreme concept that does not include every sort of treatment our society regards
as offensive.” Halim v. Holder, 590 F.3d 971, 975 (9th Cir. 2009) (internal citation
omitted).
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Mena-Juarez testified that two teenage boys, about fifteen or sixteen years old,
approached her son, about ten years old at the time, and threatened to kill him. The
teenage boys approached Mena-Juarez’s son several times and, on some occasions,
asked the son if he had a cellphone. After Mena-Juarez reported the incident to the
police, the teenage boys approached her son again and warned him about Mena-
Juarez going to the police.
While Mena-Juarez’s “experiences are disturbing and regrettable, they do not
evince actions so severe as to compel a finding of past persecution.” Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); see also Nahrvani v. Gonzales, 399
F.3d 1148, 1153 (9th Cir. 2005) (“Although death threats against an individual may
be sufficient to constitute persecution, most threats do not rise to the level of
persecution.” (internal citation omitted)). The threats, made by unknown teenage
boys, never escalated into any physical harm to Mena-Juarez, her son, or her family.
Cf. Duran-Rodriguez, 918 F.3d at 1028–29 (holding that substantial evidence does
not compel a finding of past persecution where petitioner received death threats by
individuals believed to be hitmen but “did not personally know if they had ever
carried out threats”); Wakkary v. Holder, 558 F.3d 1049, 1059–60 (9th Cir. 2009)
(rejecting past persecution where petitioner was “beaten by youths and robbed of his
sandals and pocket money” and was “accosted by a threatening mob”). In fact, when
Mena-Juarez attempted to confront the teenage boys, they ran away.
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Moreover, the record does not compel the conclusion that the teenage boys
targeted Mena-Juarez or her son “on account of” a protected social group.
Notwithstanding whether Mena-Juarez’s claimed social groups—single households
who are victims of gang violence and single households who are believed to be
witnesses against gang members—are cognizable, the BIA aptly remarked that the
threats “were more likely opportunistic encounters . . . and have not been shown to
be other than criminal in nature.” Cf. Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (affirming denial of withholding of removal where bandits had attempted
to steal a family farm and murder family members because the “harassment by
criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground”). The threats started before Mena-Juarez ever reported
anything to the police and, even after Mena-Juarez went to the police, the threats
never escalated. Cf. Soriano v. Holder, 569 F.3d 1162, 1164–65 (9th Cir. 2009)
(distinguishing “personal animosity” from well-founded fear of persecution and
concluding that “[p]etitioner’s fear of future persecution stems from the criminals’
motive to retaliate against him for informing on them”). Additionally, although
Mena-Juarez testified that her neighbors “found out” that these still-unknown
teenage boys were members of “maras” or “mareros,”1 there is no other evidence in
1
The son’s father, Mr. Gatica, wrote a letter in support of Mena-Juarez’s application
for relief. Despite Mena-Juarez’s implication that the teenage boys belong to the
infamous Mara Salvatrucha (or MS-13) gang, the IJ observed that “the Court does
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the record that supports their gang affiliation. As the BIA reasonably concluded,
without more, this speculation “is not sufficient to support that conclusion.” The
only motivation that can be inferred from the record is “mugging children who had
phones.”
Mena-Juarez also fails to establish that any claimed persecution was
committed by the government of Guatemala, or by forces that the government was
unable or unwilling to control. Mena-Juarez contends that the police rebuffed her
when she reported the threats, but the police did not seem unable or unwilling to
help. Indeed, the police indicated its willingness to investigate the unknown teenage
boys when it told her that if she “found out who they were and where they were from
to come back.” Cf. Nahrvani, 399 F.3d at 1154 (denying petition for review and
concluding that petitioner failed to demonstrate that the government was unable or
unwilling to investigate complaints where petitioner “admitted that he did not give
the police the names of any suspects because he did not know any specific names”).
The record also does not compel a finding that Mena-Juarez has an
“objectively reasonable” fear of future persecution. Not only is the gang affiliation
of the unknown teenage boys in doubt but, as the IJ points out, “[t]here is no clear
probability that the teenage boys will continue to focus on pursuing” Mena-Juarez’s
not see the words ‘Mare [sic] Salvatrucha gang members’ in the original, Spanish
version of the letter. This is a very specific criminal cartel enterprise.”
5
son. There is no evidence in the record that the teenage boys sought to discern the
whereabouts of Mena-Juarez or her son after they departed for the United States.
See Gu v. Gonzales, 454 F.3d 1014, 1021–22 (9th Cir. 2006) (rejecting well-founded
fear of future persecution where the record was “devoid of any evidence” that the
alleged persecutors had any continuing interest in petitioner). Accordingly, the
evidence in the administrative record does not compel the conclusion that Mena-
Juarez has met her burden to establish that she is eligible for withholding of removal.
2. Substantial evidence also supports the Agency’s decision to deny
Mena-Juarez and her son CAT relief. Mindful of the Agency’s conclusions
regarding persecution, we are not compelled to find that it is “more likely than not
[Mena-Juarez] will be subjected to torture by or with the acquiescence of a public
official” if she were removed to Guatemala. Duran-Rodriguez, 918 F.3d at 1029;
see also 8 C.F.R. § 1208.16(c)(2) (defining “torture” as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person .
. . by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity”); Nuru v. Gonzales, 404 F.3d 1207,
1224 (9th Cir. 2005) (explaining that “torture is more severe than persecution and
the standard of proof for the CAT claim is higher”). Mena-Juarez’s son “received
threats from private actors and, as noted above, there is no evidence or claim that
anyone has sought him or has any continuing interest in him since he departed.”
6
Duran-Rodriguez, 918 F.3d at 1029–30. Therefore, Mena-Juarez’s application for
relief under CAT fails.
Petition DENIED.
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