Nelson Gonsalez Padilla v. William Barr (9th Cir. 2020). · Go Syfert
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Nelson Gonsalez Padilla
v.
William Barr
19-72089.
Court of Appeals for the Ninth Circuit.
Oct 14, 2020.
Unpublished  |  Agency
Pinpoint authority: bottom 31%

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NELSON SAUL GONSALEZ PADILLA, No. 19-72089

Petitioner, Agency No. A205-311-768 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 8, 2020** Pasadena, California Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

An immigration judge (“IJ”) ordered Nelson Saul Gonsalez Padilla removed for being an “alien present in the United States without being admitted or paroled.”

8 U.S.C. § 1182(a)(6)(A)(i). Padilla conceded removability but unsuccessfully sought asylum, withholding of removal, protection under the Convention Against

* 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). Torture (“CAT”), and cancellation of removal. The Board of Immigration Appeals (“BIA”) dismissed Padilla’s appeal. We deny Padilla’s petition for review.

[*2]

claims he became more acutely aware of the fact that he might be deported after the initiation of removal proceedings does not affect his eligibility for asylum.

[*3]

was not on account of Padilla’s membership in a proposed social group. The evidence does not compel the conclusion that membership in these groups motivated the gang violence Padilla experienced. Barajas-Romero, 846 F.3d at 358–59 (holding that persecution must be motivated “at least in part” by the protected ground for withholding of removal claim). Nothing compels us to contradict the BIA’s conclusion that Padilla was subjected to harm from “gang violence or criminal activity.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”).

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eligibility).3

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1 We have jurisdiction over petitions for review of the “BIA’s application of the changed or extraordinary circumstances exception when the historical facts are undisputed.” Al Ramahi, 725 F.3d at 1138 (citing Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)). Here, the underlying facts are not in dispute.
2 Padilla’s reliance on Rios v. Lynch, 807 F.3d 1123 (9th Cir. 2015), is unavailing. In Rios, we merely recognized that “family” could be the basis of a particular social group and it was error to not even consider it. 807 F.3d at 1128. Here, the BIA considered Padilla’s family-based social group and concluded he did not sufficiently establish particularity.
3 Even if he could show a likelihood of torture, substantial evidence also supports the BIA’s determination that Padilla has not shown government acquiescence, since his own evidence indicates that the police in both countries took action to investigate the crimes after he reported them. See Barajas-Romero, 846 F.3d at 363 (“CAT relief is unavailable, despite a likelihood of torture, without evidence that the police are unwilling or unable to oppose the crime, not just that they are unable to solve it[.]”).
4 Padilla is ineligible for cancellation of removal because of his prior conviction under California Penal Code § 273.5 for “willfully inflict[ing] corporal injury” on his partner. See Carrillo v. Holder, 781 F.3d 1155, 1157–59 (9th Cir. 2015) (holding that Cal. Penal Code § 273.5 is categorically a “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(E)(i)). Padilla’s petition for review is DENIED. Padilla’s motion for a stay of removal pending this court’s decision is DENIED as MOOT.