Opinion
15-72769
10-07-2022
ANGEL DANILO CHAVEZ-PEREZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 4, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A095-805-570
Before: FORREST and SANCHEZ, Circuit Judges, and FREUDENTHAL, [***] Senior District Judge
MEMORANDUM [*]
Angel Danilo Chavez-Perez (Petitioner) petitions for review of a Board of Immigration Appeals ("BIA") decision dismissing his appeal from an Immigration Judge's ("IJ") order denying his applications for withholding of removal and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
The IJ additionally denied Chavez-Perez asylum relief, but on appeal to the BIA and this Court, Chavez-Perez has challenged only the denial of withholding and CAT relief.
Petitioner, a citizen of Guatemala, entered the United States without inspection in 2003, and in 2012, requested asylum, withholding of removal, and CAT relief.
The IJ found credible Petitioner's testimony that gang members attempted to recruit him as a young man, and then robbed and assaulted him twice in 2003 when he was collecting fares from passengers on the bus driven by his father. During one of the robberies, Petitioner looked at a gunman who became angry, insulted Petitioner, hit him with a gun, and threatened to kill Petitioner if he told the police. Petitioner did not report either incident to the police, as he feared the gang would kill him. Petitioner left for the United States, and Petitioner's father quit working for the bus company.
The IJ denied all claims for relief. The BIA dismissed Petitioner's appeal, concluding that Petitioner failed to demonstrate a clear probability of persecution on account of membership in a cognizable social group, and further failed to demonstrate it was more likely than not that he would face torture by or with the acquiescence of the Guatemalan government.
We review questions of fact for substantial evidence, reversing the BIA with respect to factual findings only if the evidence "compel[s]" a conclusion different from that reached by the BIA. Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (quoting 8 U.S.C. § 1252(b)(4)(B)). We "review de novo ... purely legal questions." Cordoba v. Barr, 962 F.3d 479, 481-482 (9th Cir. 2020) (quoting Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012)). "Whether a group constitutes a 'particular social group' is a question of law." Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014) (citation omitted).
Petitioner contends that he could be perceived by gang members as a potential witness to their crimes and that he is a member of a social group recognized as vulnerable to gang targeting. Petitioner fails to establish the requisite particularity or social distinction for his proposed social group of "potential witnesses against gang members" in Guatemala. See Cordoba, 962 F.3d at 482. Henriquez-Rivas v. Holder does not apply: There, this Court held that actual witnesses against gang members may constitute a particular social group, not that potential witnesses may constitute such a group. 707 F.3d 1081, 1083 (9th Cir. 2013). Petitioner offers no evidence that potential witnesses against gang members are perceived as a group in Guatemalan society as a whole . See Aguilar-Osorio v. Garland, 991 F.3d 997, 9991000 (9th Cir. 2021) (holding that the proposed social group of "witnesses ... who could testify against gang members" was not socially recognizable and distinct); Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020) (holding that substantial evidence supported the BIA's conclusion that the record did not establish that the proposed particular social group was perceived or recognized as a group by society in Guatemala). Consequently, the BIA did not err in concluding that Petitioner failed to demonstrate membership in a cognizable social group. See Aguilar-Osorio, 991 F.3d at 999-1000.
Finally, as to CAT protection, Petitioner contends his testimony and the Guatemala 2013 Human Rights Report show that the government of Guatemala has failed to prevent gang violence, and that there is abuse and mistreatment by national police members. We conclude that this evidence does not compel the conclusion that it is more likely than not Petitioner would face torture by or with the acquiescence of the government of Guatemala upon his return to that country. See Santos-Ponce, 987 F.3d at 891; Mairena v. Barr, 917 F.3d 1119, 1125 (9th Cir. 2019) (per curiam).
PETITION DENIED.
[*] 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).
[***] The Honorable Nancy D. Freudenthal, United States Senior District Judge for the District of Wyoming, sitting by designation.