FERNANDO LEMUS-HERNANDEZ, AKA Agapito Fernando Lemus-Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO LEMUS-HERNANDEZ,
AKA Agapito Fernando Lemus-Hernandez,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71546
Agency No. A098-916-915
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 4, 2021
Submission withdrawn May 25, 2021
Resubmitted September 10, 2021
Portland, Oregon
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,**
District Judge.
Fernando Lemus-Hernandez petitions for review of a decision by the Board
of Immigration Appeals (“BIA”) denying his applications for withholding of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
FILED
SEP 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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 IJ’s conclusions (1) that
Lemus-Hernandez does not face a sufficient risk of torture to qualify for CAT

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relief, and (2) that such conduct would not be carried out with the consent or
acquiescence of the Guatemalan government.
PETITION FOR REVIEW DENIED.

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