LEMUS HERNANDEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-09-10No. No. 20-71546

Summary · law.co

Holding. The petition for review is denied.

Fernando Lemus-Hernandez sought protection from removal by claiming membership in a particular social group consisting of nuclear family members of landowners in Guatemala, and separately sought relief under the Convention Against Torture. To qualify as a particular social group, an applicant must demonstrate that the group is socially distinct—meaning society generally recognizes and perceives the group as such. Although Lemus-Hernandez testified that a criminal organization targeted his family because of their substantial land holdings, the immigration judge properly found insufficient evidence that Guatemalan society views either landowners broadly or his family specifically as a socially distinct group. The court concluded that the persecutors' targeting alone does not establish social distinction.

Lemus-Hernandez also failed to satisfy the requirements for Convention Against Torture relief. The immigration judge found substantial evidence that he did not face a sufficient risk of torture and that any such conduct would not occur with the consent or acquiescence of the Guatemalan government.

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

Key issues

Whether landowners constitute a 'particular social group' for withholding of removal
Whether persecution by criminals establishes social distinction of a group
Whether applicant faced sufficient risk of torture under CAT
Whether Guatemalan government would consent to or acquiesce in torture

Procedural posture

Lemus-Hernandez petitioned for review of a Board of Immigration Appeals decision denying his applications for withholding of removal and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Fernando Lemus-Hernandez petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying his applications for withholding of removal and relief under the Convention Against Torture (“CAT”). For the following reasons, we deny the petition.

1. Lemus-Hernandez applied for withholding of removal based on membership in a particular social group (“PSG”) consisting of “nuclear family members of landowners in Guatemala.” To demonstrate membership in a PSG, an applicant must prove, inter alia, that the group is “socially distinct within the society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). “To have the ‘social distinction’ necessary to establish a particular social group, there must be evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic to be a group.” Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014). While Lemus-Hernandez testified that a “criminal organization” targeted his family because of its large landholdings, the IJ appropriately concluded that he did not offer sufficient evidence that Guatemalan society perceives either landowners in general or his family in particular as a distinct group. See Cordoba v. Barr, 962 F.3d 479, 483 (9th Cir. 2020). (“[The BIA has] emphasized that ‘the persecutors’ perception is not itself enough to make a group socially distinct, and persecutory conduct alone cannot define the group.” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 242)).

2. Substantial evidence also supports the IJs conclusions (1) that Lemus-Hernandez does not face a sufficient risk of torture to qualify for CAT relief, and (2) that such conduct would not be carried out with the consent or acquiescence of the Guatemalan government.

PETITION FOR REVIEW DENIED.