Atilua-Diaz v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 15, 2024
• Docket: 23-2481
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS ATILUA-DIAZ; DALIA No. 23-2481 ARDILA-PABON; MADDIE ATILUA- Agency Nos. ARDILA, A240-818-640 A240-823-784 Petitioners, A240-823-783 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 6, 2024** Phoenix, Arizona

Before: PAEZ, BERZON, and OWENS, Circuit Judges.

Lead petitioner Carlos Atilua-Diaz, his partner Dalia Ardila-Pabon, and his

minor child, Maddie Atilua-Ardila, natives and citizens of Colombia, petition for

* 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). review of the Board of Immigration Appeals’ (“BIA”) dismissal of their appeal of

the Immigration Judge’s (“IJ”) denial of their applications for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”).

“Where the BIA writes its own decision, as it did here, we review the BIA’s

decision, except to the extent it expressly adopts the IJ’s decision.” Diaz-Reynoso

v. Barr, 968 F.3d 1070, 1075–76 (9th Cir. 2020) (citation omitted). “We review

‘denials of asylum, withholding of removal, and CAT relief for substantial

evidence and will uphold a denial supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Guo v. Sessions, 897

F.3d 1208, 1212 (9th Cir. 2018) (citation omitted). As the parties are familiar with

the facts, we do not recount them here. We deny the petition for review.

1. Among other requirements, to be eligible for asylum, Atilua-Diaz has the

burden of establishing he suffered past persecution or has a well-founded fear of

future persecution based on a protected ground. Rodriguez Tornes v. Garland, 993

F.3d 743, 750–51 (9th Cir. 2021). Because the BIA solely relied upon Atilua-

Diaz’s failure to establish past persecution or a well-founded fear of future

persecution, our review of the asylum claim is limited to those grounds. See

Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).

The BIA upheld the IJ’s finding that Atilua-Diaz did not establish past

persecution. Atilua-Diaz contends the one in person threat and three threatening

2 23-2481 phone calls he received from Fuerzas Armadas Revolucionarias de Colombia

(FARC) dissidents amounted to past persecution. However, “[o]ur court generally

treats unfulfilled threats, without more, as within that category of conduct

indicative of a danger of future persecution, rather than as past persecution itself.”

Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). We agree with the agency that

Atilua-Diaz has not demonstrated he suffered past persecution.1 See Nahrvani v.

Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005) (“[M]ost threats do not rise to the

level of persecution.”).

The BIA also upheld the IJ’s finding that Atilua-Diaz did not have an

objective well-founded fear of future persecution. “[T]he petitioner cannot simply

prove that there exists a generalized or random possibility of persecution in his

native country; he must show that he is at particular risk—that his ‘predicament is

appreciably different from the dangers faced by [his] fellow citizens.’” Kotasz v.

INS, 31 F.3d 847, 852 (9th Cir. 1994) (alteration in original) (citation omitted).

Atilua-Diaz does not address the Colombian government’s efforts to combat the

FARC dissidents. He has not identified any direct or specific evidence in the

record “that would support a reasonable fear of persecution.” Gu v. Gonzales, 454

1 “[T]he standard of review for past persecution is currently unsettled.” Antonio v. Garland, 58 F.4th 1067, 1072 n.8 (9th Cir. 2023). However, because the harm Atilua-Diaz suffered did not rise to the level of persecution under either the de novo or substantial evidence standard, we need not address which standard applies. See id. (citing Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022)).

3 23-2481 F.3d 1014, 1019 (9th Cir. 2006) (citation omitted). Substantial evidence supports

the BIA’s determination that Atilua-Diaz has not demonstrated a well-founded fear

of future persecution.

Because Atilua-Diaz has not established past persecution or a well-founded

fear of future persecution, he has not demonstrated his eligibility for asylum. See

Rodriguez Tornes, 993 F.3d at 750–51. We deny the petition as to his asylum

claim.

2. The agency denied Atilua-Diaz’s claim for withholding of removal

because he could not meet the lower burden of proof for asylum. To be eligible for

withholding of removal, Atilua-Diaz must show a “clear probability” of future

persecution because of a protected ground, which is a “more stringent burden of

proof than the standard for asylum.” Garcia, 988 F.3d at 1146. Because Atilua-

Diaz has not met the “lesser burden of establishing” his eligibility for asylum, he

necessarily fails to meet the higher burden of establishing his eligibility for

withholding of removal. Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.

2001). We deny the petition as to his withholding of removal claim.

3. The BIA found that Atilua-Diaz waived his claim for protection under

the CAT. We deny the petition as to the CAT claim because Atilua-Diaz does not

challenge the BIA’s finding of waiver. See Nguyen v. Barr, 983 F.3d 1099, 1102

(9th Cir. 2020) (issues not raised in the opening brief are waived).

4 23-2481 4. The BIA rejected Atilua-Diaz’s due process claim because he did not

identify any due process error and, therefore, could not demonstrate prejudice by

such error. Before our court, Atilua-Diaz argues the removal proceedings violated

due process because the IJ played an improper prosecutorial role and ignored the

most salient portions of his testimony. Because Atilua-Diaz did not make this

argument before the BIA, and because he does not challenge the BIA’s rejection of

his due process claim, he likely failed to exhaust the argument, see Sola v. Holder,

720 F.3d 1134, 1135–36 (9th Cir. 2013) (per curiam), or waived it, see Nguyen,

983 F.3d at 1102. In any event, we reject Atilua-Diaz’s due process claim because

he does not show error or prejudice. See Grigoryan v. Barr, 959 F.3d 1233, 1240

(9th Cir. 2020) (“To prevail on a due process challenge to deportation proceedings,

[petitioners] must show error and substantial prejudice.” (citation omitted)).

5. The stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

5 23-2481