Baires Salinas v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 24, 2023
• Docket: 22-1006
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ZULEYMA BEATRIZ BAIRES SALINAS, No. 22-1006 Agency No. Petitioner, A202-134-448 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 17, 2023** Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.***

Zuleyma Beatriz Baires Salinas petitions for review of the Board of

Immigration Appeals’ (“BIA”) order dismissing her appeal from the Immigration

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Judge’s (“IJ”) denial of her applications for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. Where the BIA expressly

adopts the IJ’s decision and includes additional reasoning, we review the decisions

of both the BIA and the IJ. Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.

2022). Questions of law are reviewed de novo, while factual findings are reviewed

under the substantial evidence standard. Singh v. Garland, 57 F.4th 643, 651 (9th

Cir. 2022). “To prevail under the substantial evidence standard, the petitioner

‘must show that the evidence not only supports, but compels the conclusion that

these findings and decisions are erroneous.’” Davila v. Barr, 968 F.3d 1136, 1141

(9th Cir. 2020) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)).

We deny the petition for review.

1. Asylum and Withholding of Removal. “To be eligible for asylum, a

petitioner has the burden to demonstrate a likelihood of ‘persecution or a well-

founded fear of persecution on account of . . . membership in a particular social

group.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). “Either past persecution or a well-founded fear of future

persecution provides eligibility for a discretionary grant of asylum.” Ratnam v.

INS, 154 F.3d 990, 994 (9th Cir. 1998). To establish eligibility for withholding of

removal, a petitioner must demonstrate a clear probability of future persecution.

2 22-1006 Aden v. Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir. 2021).

The IJ determined that Baires Salinas failed to establish past treatment rising

to the level of persecution.1 Baires Salinas contends that an incident in which a

gang member verbally threatened her constituted persecution. Although threats

alone can constitute persecution, “[u]nfulfilled threats are very rarely sufficient to

rise to the level of persecution.” Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir.

2021); see also Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). We are “most likely

to find persecution where threats are repeated, specific and combined with

confrontation or other mistreatment.” Sharma, 9 F.4th at 1062 (quoting Duran-

Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019)). Baires Salinas credibly

testified that she was once verbally threatened by a gang member and that she

never had any other problems with the gang. Her three younger siblings, all of

whom remain in El Salvador, have never had any problems with the gang. The

threat Baires Salinas describes, without more, does not rise to the level of past

persecution.

1 As noted in Flores Molina, 37 F.4th at 633 n.2, the standard of review for past persecution is unsettled. Compare Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021) (reviewing de novo whether particular acts constitute persecution), with Sharma, 9 F.4th at 1060 (applying substantial evidence standard). Regardless of which standard is applied, the incident Baires Salinas describes does not rise to the level of past persecution. Accordingly, “we need not address whether de novo review should apply, or discuss the nuances of the two standards.” Singh, 57 F.4th at 652.

3 22-1006 Substantial evidence supports the IJ and BIA’s determination that Baires

Salinas did not demonstrate a well-founded fear of future persecution. Although

Baires Salinas testified credibly and established a subjective fear of persecution,

she has not met her burden to show that such fear is “objectively reasonable.”

Sharma, 9 F.4th at 1065. There is no evidence that the gang has any continuing

interest in Baires Salinas specifically, and her immediate relatives have not

experienced any harassment. See id. at 1066 (“The ongoing safety of family

members in the petitioner’s native country undermines a reasonable fear of future

persecution.”). And, because Baires Salinas “has not met the lesser burden of

establishing [her] eligibility for asylum, [s]he necessarily has failed to meet the

more stringent ‘clear probability’ burden required for withholding” of removal. Id.

(quoting Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001)).

2. Convention Against Torture. To establish a claim under CAT, Baires

Salinas must show that it is more likely than not that she will be tortured if

removed to El Salvador. 8 C.F.R. § 208.16(c)(2). “Torture is ‘more severe than

persecution.’” Davila, 968 F.3d at 1144 (quoting Guo v. Sessions, 897 F.3d 1208,

1217 (9th Cir. 2018)). To support a claim for CAT relief, “the torture must be

inflicted by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Id. (quoting Garcia-Milian

v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014)).

4 22-1006 Substantial evidence supports the IJ and BIA’s determination that Baires

Salinas failed to establish past torture or a sufficient likelihood of future torture.

Because the IJ and BIA “could reasonably conclude that [Baires Salinas’s] past

harm did not rise to the level of persecution, it necessarily falls short of the

definition of torture.” Sharma, 9 F.4th at 1067. And, although Baires Salinas

provides generalized evidence regarding gang violence in El Salvador, no record

evidence compels the conclusion that Baires Salinas is more likely than not to be

tortured there, or that such torture would involve the requisite state action or

acquiescence.

The motion to stay removal (Dkt. No. 2) is denied.

PETITION DENIED.

5 22-1006