Bautista Lopez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2024
• Docket: 23-554
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN CARLOS BAUTISTA LOPEZ, No. 23-554 Agency No. Petitioner, A205-143-214 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted February 5, 2024 Phoenix, Arizona

Before: BERZON, HURWITZ, and JOHNSTONE, Circuit Judges.

Juan Carlos Bautista Lopez, a native and citizen of Mexico, seeks review of

an order from the Board of Immigration Appeals (“BIA”) dismissing his appeal of

an order from an Immigration Judge (“IJ”) denying his applications for

withholding of removal and relief under the Convention Against Torture (“CAT”).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We have jurisdiction under 8 U.S.C. § 1252. “Where the BIA conducts its

own review of the evidence and law . . . , our review is limited to the BIA’s

decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v.

Barr, 974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d

1164, 1169 (9th Cir. 2012)). However, where the BIA “expresse[s] agreement with

the reasoning of the IJ,” we review both decisions. Kumar v. Holder, 728 F.3d 993,

998 (9th Cir. 2013). We review the BIA’s legal conclusions de novo and its factual

findings for substantial evidence. Id. We deny the petition.

1. The BIA did not rely on or apply an incorrect legal standard in

determining whether Bautista Lopez suffered past persecution. While the IJ used

the term “compel” in her written decision, the BIA, reviewing de novo, see Ghaly

v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995), correctly determined that Bautista

Lopez was required to show that it was “more likely than not that he . . . would be

persecuted on account of” a protected ground, 8 C.F.R. § 1208.16(b)(2). “Any error

committed by the IJ [was] rendered harmless by the [BIA’s] application of the

correct legal standard.” Ghaly 58 F.3d at 1430 (citing Elnager v. INS, 930 F.2d 784,

787 (9th Cir. 1991)).

2. Substantial evidence supports the BIA’s determination that Bautista

Lopez failed to demonstrate that the harms he suffered in Mexico rose to the level

2 23-554 of past persecution.1 See 8 C.F.R. § 1208.16(b); see also Sanjaa v. Sessions, 863

F.3d 1161, 1164 (9th Cir. 2017) (stating that it is petitioners’ burden to establish

past persecution); Sharma v. Garland, 9 F.4th 1052, 1061–63 (9th Cir. 2021)

(identifying several non-exhaustive factors relevant to our review of the past

persecution determination).

The “key question” we must consider is whether the “cumulative effect” of a

petitioner’s harm “rises to the level of persecution.” Sharma, 9 F.4th at 1061

(quoting Gormley v. Ashcroft, 364 F.3d 1172, 1176–77 (9th Cir. 2004)).

“Persecution . . . is an extreme concept that means something considerably more

than discrimination or harassment.” Id. at 1060 (quoting Donchev v. Mukasey, 553

F.3d 1206, 1213 (9th Cir. 2009)).

Bautista Lopez experienced mistreatment and bullying as a child due to his

sexual orientation, including when a group waited for Bautista Lopez after school

and threatened him with a knife. There is no indication that these individuals

continued harassing him into adulthood, and Bautista Lopez did not present

evidence that these incidents, while quite troubling, caused him significant harm.

Bautista Lopez also suffered a beating as a young adult that required stitches. But

Bautista Lopez did not know his attacker, his attacker did not show a continuing

1 The parties agree that substantial evidence review applies to the BIA’s conclusion that the harm Bautista Lopez suffered did not rise to the level of persecution. Accordingly, we apply it here.

3 23-554 interest in him, and he remained in Mexico without incident for several months

after the confrontation. Compare Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.

2003) (holding that unfulfilled threats and mistreatment along with a single

unaffiliated beating did not compel a finding of persecution) with Fon v. Garland,

34 F.4th 810, 814 (9th Cir. 2022) (finding past persecution where attackers stabbed

petitioner, threatened petitioner’s life, and continued to pursue petitioner well after

the stabbing).

Thus, considering the cumulative effects of the harm Bautista Lopez

suffered, the record does not compel a determination that Bautista Lopez

demonstrated past persecution. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012,

1016 (9th Cir. 2023).

3. Bautista Lopez does not challenge the BIA’s determination that he failed

to establish a likelihood of torture by or with the consent or acquiescence of the

Mexican government, and he has thus forfeited the argument. See Hernandez v.

Garland, 47 F.4th 908, 916 (9th Cir. 2022). Because Bautista Lopez must have

shown a clear probability of torture by or with the consent or acquiescence of the

Mexican government to be eligible for protection under the CAT, see 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1), this forfeiture precludes his claims concerning the

denial of CAT protection. See Rodriguez-Zuniga, 69 F.4th at 1023–24.

PETITION DENIED.

4 23-554