NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERSON EDUARDO PUNAY- No. 16-73439
HERNANDEZ, AKA Gerson Eduardo
Hernandez, AKA Gerson Hernandez Punay, Agency No.
AKA Gerson Eduardo Hernandez-Punay, A089-956-622
AKA Gerson Punay, AKA Gerson Eduardo
Punay,
MEMORANDUM*
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2019**
Pasadena, California
Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,*** District
Judge.
*
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). Punay-Hernandez’s
unopposed motion to submit this case on the briefs is granted.
***
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
Gerson Eduardo Punay-Hernandez, a citizen and native of Guatemala,
petitions for review of the Board of Immigration Appeal’s decision affirming an
Immigration Judge’s denial of his applications for withholding of removal under
the Immigration and Naturalization Act (INA) and relief under the Convention
Against Torture (CAT). We deny the petition.
We “review for substantial evidence factual findings underlying the denial
of a withholding or CAT claim.” Flores-Vega v. Barr, 932 F.3d 878, 886 (9th Cir.
2019). We must affirm the agency’s decision “unless the evidence presented
would compel a reasonable finder of fact to reach a contrary result.” Id.1 “Where,
as here, the BIA has reviewed the IJ’s decision and incorporated portions of it as
its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.” Parada
v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018).
Punay-Hernandez sought withholding of removal based on past persecution
because of his membership in the social group of “family of gang members.”
Substantial evidence supports the agency’s conclusion that Punay-Hernandez
failed to establish that the mistreatment he experienced in Guatemala was due to
his relationship to his gang-member cousins. He acknowledged that some of those
who threatened and robbed him did not know of his cousins’ gang affiliation, and
1
We refer to the IJ and BIA collectively as “the agency.”
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he did not offer any evidence that his brother and nephew had been murdered
because of their relationship to the cousins.
An applicant who has not established past persecution must show a
subjectively genuine and objectively reasonable fear of future persecution to be
eligible for withholding of removal. Flores-Vega, 932 F.3d at 886. Punay-
Hernandez claimed fear of future persecution because of his membership in two
groups: persons returning to Guatemala after a lengthy stay in the United States
and therefore perceived to be wealthy, and those who are relatives of gang
members. The agency correctly concluded that the first is not a cognizable social
group under the INA. See, e.g., Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir.
2019); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). And
substantial evidence supports the agency’s conclusion that Punay-Hernandez
lacked an objectively reasonable fear of future persecution because of his family
ties; his mother and sister still live in the home he left in Guatemala, and neither
has been physically harmed by gang members. Thus, the agency did not err in
denying Punay-Hernandez’s application for withholding of removal.
To qualify for relief under the CAT, Punay-Hernandez had to show that it
was “more likely than not” that he would be tortured upon removal to Guatemala.
See 8 C.F.R. § 1208.16(c)(2). Substantial evidence supports the agency’s denial of
relief based on its findings that the gang mistreatment Punay-Hernandez
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experienced did not amount to past torture. Punay-Hernandez cited gang threats,
harassment, and shootings at his house, but he failed to provide sufficient evidence
of suffering or harm to establish torture. See 8 C.F.R. § 1208.18(a)(1) (conduct
must have inflicted severe physical or mental pain and suffering to constitute
torture). He also failed to show that the claimed conduct occurred with
government consent or acquiescence. The government’s failure to convict the
individuals who killed his brother and nephew does not establish that it acquiesced
to their murders. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).
Finally, the agency properly concluded that the country conditions reports Punay-
Hernandez submitted were not sufficient to establish a likelihood of future torture,
as he did not show how the reports’ general statements about gang violence in
Guatemala are evidence of any risk of torture specific to him. See Flores-Vega,
932 F.3d at 887.
PETITION FOR REVIEW DENIED.
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