Castaneda Flores v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-517
• Status: Unpublished

Opinion

Case: 21-517, 02/22/2023, DktEntry: 49.1, Page 1 of 4

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Edgardo Armando Castaneda Flores, No. 21-517

Petitioner, Agency No. A094-393-563

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted February 17, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges.

Edgardo Armando Castaneda Flores (“Castaneda Flores”), a native and

citizen of El Salvador, petitions for review of an immigration judge’s (“IJ”)

determination that he did not establish a reasonable fear of persecution or

torture in El Salvador and therefore is not entitled to relief from his reinstated

removal order. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

* 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). Case: 21-517, 02/22/2023, DktEntry: 49.1, Page 2 of 4

petition.1

We review for substantial evidence an IJ’s negative reasonable fear

determination, upholding “unless, based on the evidence, any reasonable

adjudicator would be compelled to conclude to the contrary.” Bartolome v.

Sessions, 904 F.3d 803, 811 (9th Cir. 2018) (citations and internal quotation

marks omitted).

1. Substantial evidence supports the IJ’s determination that Castaneda

Flores failed to establish a reasonable fear of persecution as a “father of an

autistic child in El Salvador.” Castaneda Flores stated that his daughters would

remain in the United States with their mother if he were removed, and nothing

in the record suggests that he would experience persecution as a father of an

autistic daughter who lives in the United States. Castaneda Flores also

expressed fear over how the Mara Salvatrucha (“MS-13”) gang would treat him

if they knew his other daughter had arthritis, but nothing in the record suggests

that the MS-13 gang would know about his daughters’ diagnoses if they

remained in the United States. Because “[s]peculation on what could occur is

1 After briefing in this case was complete, the government notified us of a recent Second Circuit decision, Bhaktibhai-Patel v. Garland, 32 F.4th 180, 189-93, 196-97 (2d Cir. 2022), which held, contrary to Ortiz-Alfaro v. Holder, 694 F.3d 955, 958 (9th Cir. 2012), that decisions made during withholding-only proceedings are not final orders of removal subject to judicial review. We need not resolve our statutory jurisdiction over such decisions. Instead, we assume statutory jurisdiction and deny the petition on the merits. See De La Rosa- Rodriguez v. Garland, 49 F.4th 1282, 1291 (9th Cir. 2022).

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not enough to establish a reasonable fear,” Bartolome, 904 F.3d at 814,

substantial evidence supports the IJ’s determination.

We find no merit to Castaneda Flores’s argument that the IJ failed to

consider all documentary evidence. The IJ reviewed the documents he received

from Castaneda Flores’s counsel, permitted counsel to submit sixty additional

pages of documents, and referenced specific information from the documents

during the hearing. Reasonable fear determinations need not address “all of the

evidence and claims specifically.” Id. at 814. There is “no basis to assume that

the IJ failed to consider the evidence” in this record, including the country

conditions articles. Id.

2. Substantial evidence supports the IJ’s finding that Castaneda Flores

failed to establish “a reasonable possibility that he would be tortured in the

country of El Salvador” by the MS-13 gang. There is no evidence that

Castaneda Flores experienced any past harm, let alone torture, from the MS-13

gang. See Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010) (“[T]he existence

of past torture is ordinarily the principal factor on which [this Court] rel[ies].”

(internal quotation marks omitted)). Castaneda Flores expressed only

generalized fears about crime and violence in El Salvador, which is insufficient

to meet the standard for relief under the Convention Against Torture. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam);

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016). Because

Castaneda Flores “fail[ed] to show a ‘reasonable possibility’ of future torture,”

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any argument regarding “government acquiescence is irrelevant, as there is no

torture for the government to give in to.” Rivera Vega v. Garland, 39 F.4th

1146, 1158 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.31(c)); see Orozco-Lopez

v. Garland, 11 F.4th 764, 780 (9th Cir. 2021).

The motion for a stay of removal (Docket Entry No. 2) is denied. The

temporary stay of removal is lifted.

PETITION DENIED.

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