NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARVIN CIFUENTES, No. 21-769 Agency No. Petitioner, A088-894-096 v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 14, 2025** San Francisco, California
Before: BEA and DE ALBA, Circuit Judges, and BROWN, District Judge.***
Petitioner Marvin Cifuentes, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) decision denying asylum, withholding of removal,
* 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 Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation. protection under the Convention Against Torture (“CAT”), and cancellation of
removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. See also Wilkinson v.
Garland, 601 U.S. 209, 217–22 (2024) (holding that a mixed question of law and
fact such as the application of the exceptional and extremely unusual hardship
standard for cancellation of removal is reviewable under § 1252(a)(2)(D)). We
deny the petition.
We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019). We review questions of law de novo. Coronado v. Holder, 759 F.3d 977,
982 (9th Cir. 2014). We review due process claims de novo. Olea-Serefina v.
Garland, 34 F.4th 856, 866 (9th Cir. 2022). When reviewing “whether particular
acts constitute persecution for purposes of asylum,” we have reviewed persecution
determinations de novo and for substantial evidence. Singh v. Garland, 97 F.4th
597, 603 (9th Cir. 2024). Cifuentes fails under either standard.
1. The record supports the BIA’s denials of asylum and withholding of
removal. To establish eligibility for asylum and withholding of removal, Cifuentes
must show a likelihood or a clear probability of “persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Sharma v. Garland, 9 F.4th 1052,
1059 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). Even if Cifuentes’
2 21-769 claimed membership in a particular social group is cognizable, he failed to
establish the requisite nexus between the feared harm in Guatemala and a protected
ground. Cifuentes’ fear of future persecution is based on his parent’s belief that his
brother is a gang member, his uncle’s attempted kidnapping in 2017, that he is a
member of a landowning family receiving remittances, and the presence of gang
violence in his hometown. But Cifuentes acknowledged that other than the
incident involving his uncle, he was unaware of any threats or violence directed to
him or his family in Guatemala. Cifuentes’ uncle also testified that the men that
attempted to kidnap him did not say anything to him or gave any indication as to
why they targeted him. He further testified that he fears for Cifuentes’ safety in
Guatemala because people will assume Cifuentes has money because he would be
returning from the United States. This circumstantial evidence falls short of
showing an objectively reasonable fear of future persecution and that Cifuentes
would be specifically targeted based on a statutorily protected ground. See Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“A [noncitizen’s] desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.”).
Cifuentes also argues that the IJ erred in not making any findings regarding
his well-founded fear of future persecution based on his actual or imputed anti-
gang political opinion. But even if the IJ erred in not addressing this claim, any
3 21-769 error by the IJ was ultimately harmless because the BIA cured it. As the BIA
correctly stated, we have previously held that a noncitizen’s general opposition to
gangs does not constitute an actual or imputed political opinion. See Ghaly v. INS,
58 F.3d 1425, 1430 (9th Cir.1995) (noting that when the BIA conducts a de novo
review “[a]ny error committed by the IJ will be rendered harmless by the [BIA’s]
application of the correct legal standard”); see also Santos-Lemus v. Mukasey, 542
F.3d 738, 747 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (noting that general opposition to
a gang is not enough to impute a political opinion even if the police are unable to
prevent the violence). Furthermore, the evidence in the record is insufficient to
make a different finding because nowhere in the record does Cifuentes show that
he or his family will be specifically targeted based on his anti-gang sentiment. See
Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (noting that the
petitioner must provide some evidence that the persecutor will be motivated by a
belief that the petitioner held the political opinion).
2. The BIA’s denial of CAT relief is supported by substantial evidence. To
qualify for CAT relief, Cifuentes must show it is “more likely than not” that he
will be tortured upon removal. 8 C.F.R § 1208.16(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)). Because Cifuentes failed to
4 21-769 show that there is a particularized threat of harm in the future, he necessarily failed
to show a likelihood of future torture in Guatemala.
3. Applying Wilkinson’s deferential standard, the BIA did not err in finding
Cifuentes ineligible for cancellation of removal because he failed to establish the
required “exceptional and extremely unusual hardship” to a qualifying relative. 8
U.S.C. § 1229b(b)(1)(D); Wilkinson, 601 U.S. at 786–788. To satisfy the hardship
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARVIN CIFUENTES, No. 21-769 Agency No. Petitioner, A088-894-096 v. MEMORANDUM* PAMELA BONDI, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 14, 2025** San Francisco, California
Before: BEA and DE ALBA, Circuit Judges, and BROWN, District Judge.***
Petitioner Marvin Cifuentes, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) decision denying asylum, withholding of removal,
* 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 Jeffrey Vincent Brown, United States District Judge for the Southern District of Texas, sitting by designation. protection under the Convention Against Torture (“CAT”), and cancellation of
removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. See also Wilkinson v.
Garland, 601 U.S. 209, 217–22 (2024) (holding that a mixed question of law and
fact such as the application of the exceptional and extremely unusual hardship
standard for cancellation of removal is reviewable under § 1252(a)(2)(D)). We
deny the petition.
We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019). We review questions of law de novo. Coronado v. Holder, 759 F.3d 977,
982 (9th Cir. 2014). We review due process claims de novo. Olea-Serefina v.
Garland, 34 F.4th 856, 866 (9th Cir. 2022). When reviewing “whether particular
acts constitute persecution for purposes of asylum,” we have reviewed persecution
determinations de novo and for substantial evidence. Singh v. Garland, 97 F.4th
597, 603 (9th Cir. 2024). Cifuentes fails under either standard.
1. The record supports the BIA’s denials of asylum and withholding of
removal. To establish eligibility for asylum and withholding of removal, Cifuentes
must show a likelihood or a clear probability of “persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Sharma v. Garland, 9 F.4th 1052,
1059 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). Even if Cifuentes’
2 21-769 claimed membership in a particular social group is cognizable, he failed to
establish the requisite nexus between the feared harm in Guatemala and a protected
ground. Cifuentes’ fear of future persecution is based on his parent’s belief that his
brother is a gang member, his uncle’s attempted kidnapping in 2017, that he is a
member of a landowning family receiving remittances, and the presence of gang
violence in his hometown. But Cifuentes acknowledged that other than the
incident involving his uncle, he was unaware of any threats or violence directed to
him or his family in Guatemala. Cifuentes’ uncle also testified that the men that
attempted to kidnap him did not say anything to him or gave any indication as to
why they targeted him. He further testified that he fears for Cifuentes’ safety in
Guatemala because people will assume Cifuentes has money because he would be
returning from the United States. This circumstantial evidence falls short of
showing an objectively reasonable fear of future persecution and that Cifuentes
would be specifically targeted based on a statutorily protected ground. See Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“A [noncitizen’s] desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.”).
Cifuentes also argues that the IJ erred in not making any findings regarding
his well-founded fear of future persecution based on his actual or imputed anti-
gang political opinion. But even if the IJ erred in not addressing this claim, any
3 21-769 error by the IJ was ultimately harmless because the BIA cured it. As the BIA
correctly stated, we have previously held that a noncitizen’s general opposition to
gangs does not constitute an actual or imputed political opinion. See Ghaly v. INS,
58 F.3d 1425, 1430 (9th Cir.1995) (noting that when the BIA conducts a de novo
review “[a]ny error committed by the IJ will be rendered harmless by the [BIA’s]
application of the correct legal standard”); see also Santos-Lemus v. Mukasey, 542
F.3d 738, 747 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (noting that general opposition to
a gang is not enough to impute a political opinion even if the police are unable to
prevent the violence). Furthermore, the evidence in the record is insufficient to
make a different finding because nowhere in the record does Cifuentes show that
he or his family will be specifically targeted based on his anti-gang sentiment. See
Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (noting that the
petitioner must provide some evidence that the persecutor will be motivated by a
belief that the petitioner held the political opinion).
2. The BIA’s denial of CAT relief is supported by substantial evidence. To
qualify for CAT relief, Cifuentes must show it is “more likely than not” that he
will be tortured upon removal. 8 C.F.R § 1208.16(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)). Because Cifuentes failed to
4 21-769 show that there is a particularized threat of harm in the future, he necessarily failed
to show a likelihood of future torture in Guatemala.
3. Applying Wilkinson’s deferential standard, the BIA did not err in finding
Cifuentes ineligible for cancellation of removal because he failed to establish the
required “exceptional and extremely unusual hardship” to a qualifying relative. 8
U.S.C. § 1229b(b)(1)(D); Wilkinson, 601 U.S. at 786–788. To satisfy the hardship
standard, Cifuentes must show that the harm to his family member is “substantially
beyond that which ordinarily would be expected to result from [Cifuentes’]
deportation.” Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003)
(quotation marks and citation omitted). The BIA recognized that Cifuentes’
removal will cause his daughters anxiety and stress and that the family will suffer
substantial financial hardship. Taking the hardship factors in the aggregate,
however, the BIA correctly concluded that these hardships are typical for many
families facing removal of a noncitizen family member. See Cabrera-Alvarez v.
Gonzales, 423 F.3d 1006, 1013 (9th Cir. 2005) (explaining that even though the
petitioner's children would “suffer emotionally” if separated from their father, this
kind of hardship is “sadly common”).
PETITION DENIED.1
1 To the extent that Cifuentes argues that his due process rights were violated, he failed to show substantial prejudice. That is, Cifuentes failed to show that any
5 21-769 potential error “affected the outcome of the proceedings.” See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).