Neryda Peruch-Xocoy v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NERYDA PERUCH-XOCOY, et ano., No. 15-73922 Petitioners, Agency Nos. A206-835-004 A206-835-005 v. MEMORANDUM* MERRICK B. GARLAND, Attorney Gen- eral, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 25, 2022** San Francisco, California Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International Trade Judge. Neryda Peruch-Xocoy, a native and citizen of Guatemala of indigenous de- scent, petitions on behalf of herself and her minor daughter for review of a Board 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 M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. Immigration Appeals (BIA) decision dismissing their appeal from the order of an Immigration Judge (IJ) denying their application for asylum, withholding of re- moval, and protection under the Convention Against Torture (CAT).1 We “review the BIA’s denials of asylum, withholding of removal, and CAT relief for ‘substantial evidence’” and will reverse only if the evidence compels a contrary conclusion. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Where, as here, the BIA relies on the IJ’s opinion as a statement of reasons but does not simply rubber-stamp it, we look to the IJ’s decision as the underlying support for the Board’s ruling. Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014). 1. Substantial evidence supports the finding that the harm Peruch-Xocoy suf- fered, while harassing, discriminatory, and offensive, did not rise to the level of per- secution. Peruch-Xocoy was insulted for wearing indigenous clothing, was called an Indian, was pushed while riding the bus, and had difficulty finding a better job. “Dis- crimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’ within the meaning of the [Immigration and Nationality] Act.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004) (quot- ing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)). Moreover, persecution “is an extreme concept that means something considerably more than discrimination or 1 The minor daughter is a party to this case as a derivative applicant for asylum. Because her identity is not relevant to this analysis, we do not mention her by name. 2 harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (cleaned up). “This means that some circumstances that cause petitioners physical discomfort or loss of liberty do not qualify as persecution, despite the fact that such conditions have caused the petitioners some harm.” Id. (cleaned up). Peruch-Xocoy testified that she was “humiliated” but admitted that she suffered no harm in Guatemala be- yond being pushed while riding the bus. 2. The BIA permissibly concluded that …

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