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Caamal-Rosales v. Garland

United States Court of Appeals, Ninth Circuit
Oct 6, 2022
No. 17-70874 (9th Cir. Oct. 6, 2022)

Opinion

17-70874

10-06-2022

ENRIQUE AMINADAB CAAMAL-ROSALES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 4, 2022 Seattle, Washington

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208-121-259

Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit Judges.

MEMORANDUM

Petitioner Enrique Caamal-Rosales challenges the Board of Immigration Appeals' ("BIA") denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

Petitioner, a native and citizen of Mexico, entered the United States without being admitted or paroled on February 17, 2015. Petitioner applied for asylum, withholding of removal, and CAT protection on March 10, 2015. Prior to entering the United States, Petitioner served in the Mexican military and special forces from 1994 to 2000. Petitioner testified before the Immigration Judge ("IJ") that he applied "to be a . . . religious minister" in 2004 or 2005 "because [he] wanted nothing . . . to do anymore with weapons."

The IJ denied relief. The IJ rejected his proposed social groups because the BIA "previously held that individuals subject to recruitment efforts by gangs who have rejected or resisted such recruitment efforts based on their own personal, moral, or religious opposition to the gang's values and activities do not constitute a particular social group." The IJ also held that "victimization simply for personal or economic reasons does not establish persecution on account of a protected ground." Finally, the IJ denied CAT relief because Petitioner's "only experience with having been physically mistreated in Mexico was when he was struck on his glutes with a stick" and he "has not expressed any fear of mistreatment at the hands of the authorities in Mexico."

The BIA affirmed the denial of asylum, finding that Petitioner failed to show "past persecution or a well-founded fear of future persecution" in Mexico on account of a protected ground. Petitioner did not meet "his burden of establishing by record evidence that Mexican society considers former Special Forces members who have resisted gang recruitment or returning Mexicans who have been recruited by gangs to be a distinct group." Both of Petitioner's "proposed groups also lack[ed] the requisite particularity, as they may include men who have resisted in varying degrees, as well as young men who recently resisted and men whose resistance to gang recruitment occurred many years ago." The BIA also found that Petitioner failed to "prov[e] eligibility for asylum or withholding of removal." The BIA also denied CAT relief, holding that Petitioner's "bare assertion that the government 'does nothing to protect people' from gang or cartel recruitment and violence is insufficient to show . . . acquiescence or clear probability of torture."

The agency's denial of asylum was not erroneous. Petitioner failed to show past persecution because persecution is "the infliction of suffering or harm . . . in a way regarded as offensive," Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (citation omitted), and "an extreme concept that does not include every sort of treatment our society regards as offensive," Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citation omitted). The only harm that Petitioner suffered was being hit "three times with a stick" on "[his] bottom," which did not require medical attention and did not lead to any further incidents.

Petitioner also failed to demonstrate a well-founded fear of future persecution because the harm that Petitioner fears is not distinct from "[m]ere generalized lawlessness and violence," which "generally is not sufficient . . . to grant asylum ...." Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998). Although Petitioner claimed that he did not report his fear of those whom he believes to be the Zetas to the authorities because they are ineffective, "[p]olice ineffectiveness is not enough to establish an entitlement to relief, 'absent evidence of corruption or other inability or unwillingness to oppose criminal organizations.'" Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (emphasis added) (citation omitted).

Petitioner also failed to show a connection to a protected ground. He asserted membership in two proposed groups: "former special forces members who are recruited by the Zetas" and "people returning to Mexico who have been recruited to participate in a criminal gang." "[T]he key to establishing a particular social group is ensuring that the group is narrowly defined." Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010). "The critical issue . . . is whether there is evidence to support social recognition of the proposed group." Pirir-Boc v. Holder, 750 F.3d 1077, 1083 (9th Cir. 2014). As the agency held, Petitioner "has not met his burden of establishing by record evidence that Mexican society considers former Special Forces members who have resisted gang recruitment or returning Mexicans who have been recruited by gangs to be a distinct group within society."

The agency's denial of withholding of removal was also not erroneous because the agency correctly found that Petitioner did not meet the standard required for asylum. Petitioner's "failure to satisfy the 'well-founded fear' standard applicable to asylum applications necessarily preclude[s] his satisfying the more stringent 'clear probability of persecution' that withholding of removal requires ...." Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003) (citation omitted).

The denial of CAT relief was also not erroneous. The agency correctly found that the harm Petitioner suffered in Mexico, being struck on the glutes with a stick, did not amount to torture. "Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment ...." Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (citation omitted). Petitioner's reliance on generalized violence in Mexico does not establish eligibility for relief because "evidence that a government has been generally ineffective in preventing or investigating" crime does not "raise an inference that public officials are likely to acquiesce in torture, absent evidence of corruption or other inability or unwillingness to oppose criminal organizations." Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).

PETITION DENIED.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).


Summaries of

Caamal-Rosales v. Garland

United States Court of Appeals, Ninth Circuit
Oct 6, 2022
No. 17-70874 (9th Cir. Oct. 6, 2022)
Case details for

Caamal-Rosales v. Garland

Case Details

Full title:ENRIQUE AMINADAB CAAMAL-ROSALES, Petitioner, v. MERRICK B. GARLAND…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 6, 2022

Citations

No. 17-70874 (9th Cir. Oct. 6, 2022)