NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL FELIPE PEREZ-PEREZ, AKA No. 19-70938
Lopez,
Agency No. A202-069-682
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2021**
Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District
Judge.
Petitioner Angel Felipe Perez-Perez, a Guatemalan native and citizen of
*
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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
indigenous Mayan descent, seeks review of an order entered by the Board of
Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of
his application for withholding of removal under the Immigration and Nationality
Act, and for protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.
2019) (citing Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). We review
legal questions de novo and factual findings for substantial evidence. Conde
Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). Whether a particular social
group is cognizable is a question of law, but whether that group is socially distinct
is a question of fact. Id. at 1242.
1. Substantial evidence supports the BIA’s determination that Petitioner
was insufficiently likely to suffer persecution on account of his family membership
to be entitled to withholding of removal. “[W]hen similarly situated members of
the petitioner’s family live without incident in the alleged danger zone, such family
evidence and the inferences drawn from it does substantially support the agency
decision . . . .” Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008)
(internal quotation marks, modifications, and citation omitted), abrogated on other
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grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Here, it is undisputed that Petitioner’s parents have “remained unharmed” in his
hometown. See id. And they are similarly situated because they helped file the
police report that Petitioner merely encouraged, and they too received unfulfilled
threats of violence. While the IJ erroneously assumed that Petitioner’s sister also
remained in Guatemala, the BIA expressly declined to rely on that part of the IJ’s
reasoning. See Duran-Rodriguez, 918 F.3d at 1027–28 (noting that we review only
those parts of the IJ’s decision on which the BIA relied). And despite Petitioner’s
suggestions otherwise, the BIA gave adequate attention to his individual risk of
persecution, but simply found that risk insufficient. Substantial evidence
supported that conclusion. See Santos-Lemus, 542 F.3d at 743–44; see also
Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021) (“Unfulfilled threats are very
rarely sufficient to rise to the level of persecution . . . .”) (citing Hoxha v. Ashcroft,
319 F.3d 1179, 1182 (9th Cir. 2003)).
There is also substantial evidence that Petitioner’s Mayan ethnicity was not
“a reason” members of MS-13 attacked him in 1999. See Barajas-Romero v.
Lynch, 846 F.3d 351, 358–60 (9th Cir. 2017). Petitioner’s assailants never
mentioned his ethnicity, and Petitioner testified that he was attacked because of his
resistance to recruitment, not because he is Mayan. The expert witness did not
testify otherwise. The record thus does not compel the conclusion that Petitioner
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was attacked because he is Mayan. See Sanjaa v. Sessions, 863 F.3d 1161, 1164
(9th Cir. 2017) (finding no causal nexus where petitioner testified he was attacked
for a reason other than a statutorily protected ground and attackers never
mentioned that ground).
The BIA also reasonably found incognizable Petitioner’s proffered social
group of “Mayan men who have actively resisted gang recruitment.” See
Henriquez-Rivas, 707 F.3d at 1087. The record does not compel the conclusion
that Guatemalan society views that group as “sufficiently separate or distinct.” See
Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020) (quoting Pirir-Boc v.
Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)). Rather, substantial evidence
established that gang violence is widespread, and that the gangs target anyone they
deem advantageous. See id. at 981.
2. Substantial evidence also supports the finding that Petitioner’s fear of
torture is speculative, see Xiao Fei Zheng v. Holder, 644 F.3d 829, 836 (9th Cir.
2011), or based on a generalized fear of violence and corruption, see Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Moreover, the BIA
adequately considered the aggregate risk of torture. See Quijada-Aguilar v. Lynch,
799 F.3d 1303, 1308 (9th Cir. 2015) (“CAT claims must be considered in terms of
the aggregate risk of torture from all sources, and not as separate, divisible CAT
claims.”) (citing Cole v. Holder, 659 F.3d 762, 775 (9th Cir. 2011)). The IJ
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considered “the totality of the testimony and the other evidence in the record,” and
concluded that it was insufficiently likely Petitioner would be tortured if removed
to Guatemala. That was enough to deny Petitioner CAT protection.
The petition for review is DENIED.
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