Brandon Reyes-Perez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BRANDON ISAAC REYES-PEREZ, No. 20-72323 Petitioner, Agency No. A208-576-550 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 14, 2022** Pasadena, California Before: BENNETT and KOH, Circuit Judges, and KATZMANN,*** Judge. Brandon Isaac Reyes-Perez, a citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal 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 Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. an order of an immigration judge (“IJ”) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and review the BIA’s denial of asylum, withholding of removal, and CAT relief for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1066 (9th Cir. 2021). We review due process claims de novo. Zetino v. Holder, 622 F.3d 1007, 1011–12 (9th Cir. 2010). We deny the petition. 1. Substantial evidence supports the BIA’s denial of asylum because Reyes-Perez failed to show past persecution or a well-founded fear of future persecution. As to past persecution, Reyes-Perez failed to show that: (1) gang members targeted him on account of a protected ground; and (2) the Guatemalan government was unwilling or unable to control such gangs.1 First, Reyes-Perez’s proposed social group of “Young Men who have been threatened by Guatemalan Gang Members and Whose Family has been Threatened Similarly by the same Gang Members” is impermissibly circular. His group is not cognizable because it cannot “exist independently of the fact of persecution.” Diaz- 1 Because either failure alone is fatal to establishing past persecution, we need not address the BIA’s determination that the harm Reyes-Perez suffered did not rise to the level of persecution. 2 Reynoso v. Barr, 968 F.3d 1070, 1081 (9th Cir. 2020) (quoting Matter of M-E-V- G-, 26 I. & N. Dec. 227, 236 n.11 (BIA 2014)). Second, Reyes-Perez never reported his two gang incidents to the police. Reyes-Perez did not provide sufficient evidence to support his allegation that the police would not have assisted him if he had reported the incidents. See Castro- Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (holding failure to report domestic violence due to belief that police would do nothing did not establish that the Honduran government was unwilling or unable to address domestic violence). Although the record contains evidence that Guatemala has problems with gang violence, the IJ correctly noted that the record also contains evidence that the Guatemalan government has taken preventative and corrective action. Thus, the record does not …

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