HERRERA DE PEREZ v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-27No. No. 19-71914

Summary · law.co

Holding. The petition for review was dismissed in part for lack of jurisdiction and denied in part on the merits.

Wendy Lisseth Herrera de Perez, a Salvadoran citizen, sought review of the Board of Immigration Appeals' dismissal of her appeal challenging a denial of asylum, withholding of removal, and relief under the Convention Against Torture. The court lacked jurisdiction to review a humanitarian asylum claim she raised for the first time on appeal. On the merits, the court found substantial evidence supported the agency's determination that she failed to demonstrate persecution based on a protected ground, including proposed particular social groups grounded in family membership and gender-based vulnerability to lack of government protection.

The court also upheld the agency's rejection of her claim to membership in a cognizable particular social group based on being perceived as a wealthy returnee, finding she did not meet the required criteria of sharing an immutable characteristic, being defined with particularity, and being socially distinct. Similarly, substantial evidence supported denial of Convention Against Torture relief because she failed to establish it was more likely than not that she would face torture by or with the consent or acquiescence of the Salvadoran government upon return.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Jurisdiction to review asylum claims not presented before the immigration judge
Whether persecution was motivated by a protected ground rather than other factors
Cognizability of particular social groups based on family membership and gender
Whether the applicant qualified as a recognizable particular social group as a perceived wealthy returnee
Sufficiency of evidence of torture risk under the Convention Against Torture

Procedural posture

The petitioner sought judicial review of a Board of Immigration Appeals order dismissing her appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Wendy Lisseth Herrera de Perez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judges decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIAs interpretation of the governing statutes and regulations. Id. at 1241-42. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Herrera de Perezs humanitarian asylum claim. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented below).

Substantial evidence supports the agencys determination that Herrera de Perez failed to establish that she was or would be persecuted on account of a protected ground, including proposed particular social groups based on her family membership and status as a woman not protected by the government. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of [her] membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicants “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”).

The agency did not err in concluding that Herrera de Perez did not establish membership in a cognizable particular social group based on his status as a perceived wealthy returnee. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’ ” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))).

Thus, Herrera de Perezs asylum and withholding of removal claims fail.

Substantial evidence also supports the agencys denial of CAT relief because Herrera de Perez failed to show it is more likely than not she will be tortured by or with the consent or acquiescence of the government if returned to El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record Herrera de Perezs contentions that the agency violated her right to due process or otherwise erred in its analysis of her claims.

As stated in the courts October 7, 2020 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.