Castillo Sanchez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2023
• Docket: 21-1193
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

David G. Castillo Sanchez, No. 21-1193

Petitioner, Agency No. A213-080-311

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

Respondent.

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

Submitted March 6, 2023** Pasadena, California

Before: CALLAHAN, FORREST, and H.A. THOMAS, Circuit Judges.

Petitioner David G. Castillo Sanchez seeks review of the Board of

Immigration Appeals’ (BIA) denial of his claims for asylum, withholding of

removal and relief under the Convention Against Torture (CAT). He also argues

the BIA erred in failing to terminate the removal proceedings because his Notice

to Appear was deficient. We have jurisdiction under 8 U.S.C. § 1252(a), and we

* 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). deny the petition.

1. Request to terminate proceedings. Our precedent forecloses

Castillo Sanchez’s argument that the agency lacked jurisdiction over his removal

because his Notice to Appear was deficient. See United States v. Bastide-

Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc) (“[T]he failure of [a

notice to appear] to include time and date information does not deprive the

immigration court of subject matter jurisdiction.”).

2. Asylum and Withholding of Removal.

A. Past Persecution. “Unfulfilled threats are very rarely sufficient

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

2021). Indeed, we generally find that threats constitute persecution where the

threats are “repeated, specific and combined with confrontation or other

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

(internal quotation marks and citation omitted).

The threats Castillo Sanchez and his family faced came from multiple

distinct actors, were not accompanied by any physical harm, and some came in

circumstances that otherwise cast doubt on any intent to fulfill the threats. In two

incidents identified by Castillo Sanchez, gang members threatened him and his

ministry while they were proselytizing but nevertheless allowed the ministry to

continue its work. Even aggregated with Castillo Sanchez’s other alleged

threats—a threatening anonymous text and a threat and demand for an extortion

payment—the threats Castillo Sanchez received do not rise to the level of

2 persecution under our precedent. See Duran-Rodriguez, 918 F.3d at 1028 (no past

persecution where petitioner had been threatened with death over the phone and

in person by armed gang members); Sharma v. Garland, 9 F.4th 1052, 1063–64

(9th Cir. 2021) (no past persecution where petitioner had suffered multiple

threats, arrest and detention, and beating).

B. Nexus. To establish eligibility for asylum and withholding of

removal, a petitioner must establish a “nexus” between his feared future

persecution and a protected ground. See Barajas-Romero v. Lynch, 846 F.3d 351,

359–60 (9th Cir. 2017). In other words, failure to establish a nexus is fatal to a

claim for both asylum and withholding. See id. at 360; see also Zetino v. Holder,

622 F.3d 1007, 1015–16 (9th Cir. 2010).

Castillo Sanchez’s argument that he will face persecution because of his

familial relationship fails because the harm he alleges—retaliation for not making

extortion payments—bears no relation to his family membership, particularly

where he testified such extortion demands are made to anyone with a perceived

income. See Zetino, 662 F.3d at 1016 (holding harm motivated by theft bears no

nexus to a protected ground). And the record does not compel the conclusion that

Castillo Sanchez’s other proffered protected grounds, all related to his church

membership, bear a causal connection to his feared persecution. The threats

Castillo Sanchez faced in the past were not directly tied to animus regarding his

religious views or church membership—particularly given the gang members

allowed Castillo Sanchez and his ministry to continue their services. Rather, the

3 threats made in person can reasonably be seen as prompted by Castillo Sanchez’s

travel through dangerous gang-controlled territory in which violent crime was

known to be rampant. And while the anonymous text message mentions Castillo

Sanchez’s church, the threat made was not in reference to his church membership

or views. Like harm motivated by theft, harm from random gang violence lacks

a nexus to a protected ground. See id.

3. CAT. “CAT protection cannot be granted unless an applicant shows

a likelihood of torture that is inflicted by or at the instigation of or with the consent

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

acting in an official capacity.” B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022)

(internal quotation marks and citation omitted). The record does not compel the

conclusion that Castillo Sanchez would face torture at the hands of or with the

acquiescence of government actors in El Salvador. Castillo Sanchez’s feared

harm is from gangs, and the police’s offer to work with Castillo Sanchez’s partner

to try and catch the individuals who threatened and tried to extort their family

undercuts Castillo Sanchez’s contention that the government would acquiesce to

his torture.

PETITION DENIED.