FILED NOT FOR PUBLICATION APR 12 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN HERMILO GARCIA-JUAN, No. 19-71677 Petitioner, Agency No. A077-086-803 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 4, 2020** Pasadena, California Before: RAWLINSON, N.R. SMITH, and LIPEZ,*** Circuit Judges. Petitioner Juan Hermilo Garcia-Juan (Garcia-Juan) petitions for review 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 Kermit Victor Lipez, United States Circuit Judge for the First Circuit, sitting by designation. the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). Garcia-Juan’s assertion that the immigration judge (IJ) denied withholding of removal based on a factual misrepresentation that he returned to Mexico “multiple times” is unavailing. Garcia-Juan testified that he returned to Mexico on more than one occasion—when he visited his parents in Oaxaca, Mexico, in 1991, and when he was removed from the United States in 1998. This testimony sufficiently supported the IJ’s finding that Garcia-Juan “returned to Mexico multiple times since his initial entry and not suffered persecution.” Substantial evidence supports the BIA’s denial of withholding of removal because Garcia-Juan failed to demonstrate “a clear probability” of persecution in Mexico based on his Zapotec indigenous background or status as a deportee from the United States. Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th Cir. 2020) (citation and internal quotation marks omitted). Although Garcia-Juan relied on expert testimony to demonstrate that the Zapotec indigenous group and deportees from the United States were subjected to discrimination, Garcia-Juan failed to establish the requisite individualized risk of persecution. See Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010), as amended (explaining that “a 2 petitioner’s membership in a disfavored group is not sufficient by itself to meet [his] ultimate burden of proof; some evidence of individualized risk is necessary for the petitioner to succeed”) (citation and internal quotation marks omitted) (emphases in the original). The BIA did not err in concluding that Garcia-Juan failed to demonstrate a pattern or practice of persecution against the Zapotec or deportees from the United States. The evidence did not compel the conclusion that discrimination against the Zapotec or deportees from the United States amounted to a pattern or practice of persecution warranting withholding of removal in this case. See Wakkary v. Holder, 558 F.3d 1049, 1061-62 (9th Cir. 2009) (holding that evidence of widespread discrimination against a particular ethnic group did not compel the conclusion that there was a pattern or practice of persecution). Substantial evidence supports the BIA’s denial of relief under the CAT because Garcia-Juan failed to demonstrate that …
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