Juan Hermilo Garcia-Juan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN HERMILO GARCIA-JUAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71677
Agency No. A077-086-803
MEMORANDUM*
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
FILED
APR 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

-- 1 of 5 --

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

-- 2 of 5 --

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 any potential harm associated with
economic discrimination or generalized crime would rise to the level of torture.
See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (stating that “the
petitioner must demonstrate that he would be subject to a particularized threat of
torture”) (citation and internal quotation marks omitted) (emphasis in the original);
see also Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013) (concluding that
3

-- 3 of 5 --

“economic deprivation” did not “rise to the level of torture”); Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (determining that “generalized
evidence of violence and crime in Mexico” that was “not particular to Petitioners”
was “insufficient to meet” the standard for torture).
Garcia-Juan’s due process challenges to his underlying removal order are
barred by our prior dismissal of his petition for review of the BIA’s denial of his
motion to reopen proceedings sua sponte. See Medina-Lara v. Holder, 771 F.3d
1106, 1118 (9th Cir. 2014). The BIA previously rejected Garcia-Juan’s due
process claims, and we dismissed Garcia-Juan’s petition for review for lack of
jurisdiction, thus barring Garcia-Juan’s renewed challenges to his removal order.
See id. In any event, Garcia-Juan’s contentions premised on Pereira v. Sessions,
138 S.Ct. 2105 (2018) are foreclosed by our precedent. See Karingithi v. Whitaker,
913 F.3d 1158, 1161-62 (9th Cir. 2019).
Finally, Garcia-Juan failed to demonstrate that a change in the IJ who
presided over the final portion of his hearing rendered the proceedings “so
fundamentally unfair that [he] was prevented from reasonably presenting his case,”
or that he was prejudiced, “mean[ing] that the outcome of the proceeding may have
been affected by the alleged violation.” Colmenar v. I.N.S., 210 F.3d 967, 971 (9th
Cir. 2000) (citations omitted). The IJ thoroughly reviewed the record, and
4

-- 4 of 5 --

substantial evidence supports the denial of Garcia-Juan’s claims. See Garcia v.
Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (explaining that “[s]ubstantial
evidence review means that the BIA’s determinations will be upheld if the decision
is supported by reasonable, substantial, and probative evidence on the record
considered as a whole”) (citation and internal quotation marks omitted).
PETITION DENIED.
5

-- 5 of 5 --