De Salinas Franco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2023
• Docket: 21-1056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YONATAN DE SALINAS FRANCO, No. 21-1056

Petitioner, Agency No. A208-740-702

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 18, 2023** Pasadena, California

Before: WARDLAW and KOH, Circuit Judges, and ROSENTHAL,*** District Judge.

Yonatan de Jesus Salinas Franco (“Salinas Franco”), a native and citizen

of El Salvador, petitions for review of an order of the Board of Immigration

Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying

* 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 Lee H. Rosenthal, United States District Judge for the Southern District of Texas, sitting by designation. his applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). As the parties are familiar with the facts

of this case, we do not recount them here. We have jurisdiction under 8 U.S.C.

§ 1252, and 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), meaning that “[t]o reverse the BIA, we must determine that the evidence

not only supports a contrary conclusion, but compels it—and also compels the

further conclusion that the petitioner meets the requisite standard for obtaining

relief,” Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (cleaned up).

1. Substantial evidence supports the BIA’s denial of asylum and

withholding of removal based on its conclusion that Salinas Franco failed to

establish a nexus between any persecution and a protected ground. See Aden v.

Wilkinson, 989 F.3d 1073, 1084 (9th Cir. 2021) (explaining that to meet the

nexus requirement for asylum, “an applicant must show that the protected

ground was ‘at least one central reason’ the applicant was persecuted” (quoting

8 U.S.C. § 1158(b)(1)(B)(i))); Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019)

(explaining that to meet the nexus requirement for withholding, an applicant

must show that the protected ground “was ‘a reason’ for his persecution”

(quoting Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017))).

The record does not compel the conclusion that Salinas Franco

established a nexus to his membership in his proposed particular social group of

2 “Salvadoran male who fears being murdered by violent gang members.”

Rather, Salinas Franco testified that he was targeted by the police because he

was believed to be a gang member, either due to his youth or being mistaken for

his gang-member cousin. Salinas Franco fails to otherwise show that any harms

he suffered were motivated because of his membership in his particular social

group.

Nor does the record compel the conclusion that Salinas Franco

established a nexus to an imputed political opinion. Salinas Franco does not

identify any specific political opinion that he believes was imputed to him, let

alone present evidence that “‘his persecutors believed that he held . . . a political

opinion’” and “‘that he was harmed because of that political opinion.’” See

Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014) (quoting Baghdasaryan v.

Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)).

Because the record does not compel reversal of the BIA’s nexus

determination, Salinas Franco’s asylum and withholding of removal claims

necessarily fail.1 See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016)

(recognizing that a “lack of nexus to a protected ground is dispositive of

[petitioner’s] asylum and withholding of removal claims”).

1 We do not consider any matters “not specifically and distinctly raised and argued” in Salinas Franco’s opening brief, including the agency’s findings that the proposed particular social group was not cognizable and that the threats by the gang members did not rise to the level of persecution. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

3 2. Substantial evidence supports the BIA’s denial of CAT relief.

Contrary to Salinas Franco’s argument, the record does not compel the

conclusion that the past harms he suffered—being threatened, robbed, and

punched twice—rise to the level of torture. See, e.g., Vitug v. Holder, 723 F.3d

1056, 1066 (9th Cir. 2013) (holding that multiple physical beatings over several

years and economic deprivation did not rise to the level of torture). Considering

the absence of past torture, the record does not compel the conclusion that

Salinas Franco “more likely than not will be tortured if [he] is removed” to El

Salvador. See id. Salinas Franco points to no other evidence “demonstrating

the particularized and more-likely-than-not threat of future torture needed to

obtain CAT relief.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir.

2022).

PETITION DENIED.