Buitron Vilcapoma v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2024
• Docket: 23-2488
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HORACIO BUITRON VILCAPOMA, No. 23-2488 Agency No. Petitioner, A200-909-990 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 13, 2024** Phoenix, Arizona

Before: DESAI and DE ALBA, Circuit Judges, and GUTIERREZ, District Judge.***

Petitioner Horacio Max Buitron Vilcapoma (“Petitioner”), a native and

citizen of Peru, seeks review of a decision by the Board of Immigration Appeals

* 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 Philip S. Gutierrez, United States District Judge for the Central District of California, sitting by designation. (“the Board”) adopting and affirming an Immigration Judge’s (“IJ”) denial of

Petitioner’s application for withholding of removal and relief under the Convention

Against Torture (“CAT”). When the Board adopts and affirms an IJ’s ruling while

citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), we must “look

through the [Board’s] decision and treat the IJ’s decision as the final agency

decision for purposes of this appeal.” Tamang v. Holder, 598 F.3d 1083, 1088 (9th

Cir. 2010). We review the IJ’s factual findings for substantial evidence and its

legal conclusions de novo. Id. We have jurisdiction pursuant to 8 U.S.C. § 1252

and deny the petition for review.

1. Substantial evidence supports the denial of Petitioner’s application for

withholding of removal because Petitioner did not show that he suffered past

persecution or show by a clear probability that he will suffer future persecution if

returned to his home country. See Aden v. Wilkinson, 989 F.3d 1073, 1085–86 (9th

Cir. 2021). A showing of past persecution entitles a petitioner to a presumption of

future persecution. 8 C.F.R. § 208.16(b)(1). If a petitioner cannot show past

persecution, he must show that it is more likely than not that he will face

persecution if returned to his home country to qualify for withholding of removal.

See Kaiser v. Ashcroft, 390 F.3d 653, 660 (9th Cir. 2004). Persecution is an

“extreme concept” and not every form of abhorrent harassment or intimidation

qualifies. Nagoulko v. I.N.S., 333 F.3d 1012, 1016 (9th Cir. 2003). “[S]ome

2 23-2488 circumstances that cause petitioners physical discomfort or loss of liberty do not

qualify as persecution, despite the fact that such conditions have caused the

petitioners some harm.” Mihalev v. Ashcroft, 388 F.3d 722, 729 (9th Cir. 2004).

Whether treatment qualifies as persecution is a fact intensive inquiry; we examine

whether the individual experienced physical violence, detention, and threats of

harm, among other factors, when making this determination. Sharma v. Garland, 9

F.4th 1052, 1061–63 (9th Cir. 2021). However, “cases with threats alone,

particularly anonymous or vague ones, rarely constitute persecution.” Duran-

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

Petitioner claims that he was threatened by Shining Path, a terrorist

organization that operates in Peru. He discusses how Shining Path attempted to

intimidate him and other members of his community into doing the group’s

bidding. Petitioner states that members of Shining Path told him that they were

always watching him, and he would see what would occur if he disobeyed the

organization. Though troubling, Petitioner never alleges that Shining Path ever

physically harmed him. Nor does he mention any specific threats of harm or

violence made by Shining Path towards him or his family. Vague threats like these

rarely constitute persecution. Therefore, substantial evidence supports the IJ’s

determination that Petitioner did not suffer from past persecution.

Substantial evidence also supports the IJ’s determination that Petitioner did

3 23-2488 not establish a clear probability of future persecution. This is a very high burden

and we have upheld a denial of withholding of removal on more egregious facts

than those presented here. In Kaiser, for example, the petitioner was placed on a

hit list, shot at on at least two occasions, fled the country, and was subject to death

threats and a potential attempted kidnapping when he returned to his home country.

390 F.3d at 656. Even under those circumstances, we upheld the Board’s

determination that the petitioner did not show by a clear probability that he would

face future persecution if returned to his home country. Id. at 660. Petitioner’s

situation, though troubling, is less severe than the petitioner’s situation in Kaiser.

2. Substantial evidence supports denial of relief under CAT. Torture is

“any act by which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person . . . by or at the instigation of or with the consent

or acquiescence of a public official . . . or other person acting in an official

capacity.” 8 C.F.R. § 208.18(a)(1). To succeed on his CAT claim, Petitioner must

show that it is “more likely than not that he . . . would be tortured if removed to the

proposed country of removal.” Id. § 208.16(c)(2). “Torture is ‘more severe than

persecution.’” Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (quoting Guo

v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018)).

“Acquiescence of a public official requires that the public official, prior to

the activity constituting torture, have awareness of such activity and thereafter

4 23-2488 breach his or her legal responsibility to intervene to prevent such

activity.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (quoting 8

C.F.R. § 208.18(a)(7)). “[A] general ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show acquiescence.” Id. (citing

Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)).

Petitioner does not allege any past suffering that would amount to torture.

And although he recounts an incident that reflected police corruption, Petitioner

does not claim that a public official ever attempted to harm him. Nor does

Petitioner provide evidence that a public official would acquiesce to his torture if

returned to Peru. Therefore, substantial evidence supports the denial of

Petitioner’s claim for relief under CAT.

DENIED.1

1 Petitioner’s motion to stay removal and supplemental motion to stay removal pending this Court’s resolution of his petition for review is DENIED as moot.

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