Diaz-Rosales v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2024
• Docket: 23-2686
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GRICELDA LISBETH DIAZ- No. 23-2686 ROSALES; ELMER ALEXANDRIA Agency Nos. QUINTEROS-FUENTES; KIMBERLIN A203-767-412 ARACELY QUINTEROS-DIAZ, A203-767-411 A203-767-413 Petitioners, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 18, 2024** San Jose, California

Before: GRABER, FRIEDLAND, and BUMATAY, Circuit Judges.

Petitioners Gricelda Lisbeth Diaz-Rosales and Elmer Alexandria Quinteros-

* 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). Fuentes, 1 natives and citizens of El Salvador, petition for review of a Board of

Immigration Appeals’ (“BIA”) decision dismissing their appeal of an immigration

judge’s (“IJ”) decision denying their applications for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition.

“We review the agency’s factual findings for substantial evidence” and its

legal conclusions de novo. Cordoba v. Barr, 962 F.3d 479, 481–82 (9th Cir. 2020).

1. To obtain asylum, Petitioners must “demonstrate a likelihood 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) (citation and internal quotation marks

omitted). “Either past persecution or a well-founded fear of future persecution

provides eligibility for a discretionary grant of asylum.” Flores Molina v. Garland,

37 F.4th 626, 633 (9th Cir. 2022) (quoting Ratnam v. INS, 154 F.3d 990, 994 (9th

Cir. 1998)). Only the fear of future persecution is relevant here. 2 Accordingly,

1 Petitioners did not file a separate asylum application for their child, who is a derivative beneficiary. See 8 U.S.C. § 1158(b)(3)(A). No derivative relief is available under withholding of removal or CAT. See Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir. 2013) (withholding); Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (CAT). 2 During the administrative proceedings, Petitioners claimed to have experienced past persecution and to hold fears of future persecution. The IJ found that Petitioners

2 23-2686 Petitioners “must establish a well-founded fear of future persecution by showing

both a subjective fear of future persecution, as well as an objectively ‘reasonable

possibility’ of persecution upon return to the country in question.” Duran-Rodriguez

v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (citation omitted).

The agency found that Petitioners failed to satisfy the objective prong of the

fear-of-future-persecution inquiry, and the record does not compel a contrary

conclusion. See Zehatye v. Gonzales, 453 F.3d 1182, 1185–88 (9th Cir. 2006)

(applying the substantial evidence standard to the agency’s findings regarding the

fear of future persecution). Petitioners remained in El Salvador for ten months,

without relocating, after Quinteros-Fuentes was initially threatened, and no members

of the family received any further threats from the gang during that time. See Lata

v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000) (finding no fear of future persecution

when petitioners remained in Fiji for two years after an isolated incident); Prasad v.

INS, 47 F.3d 336, 340 (9th Cir. 1995) (refusing to disturb the agency’s finding on

future persecution based on a single, isolated incident). Petitioners argue that the

agency overlooked evidence regarding the risks faced by the particular social group

that Quinteros-Fuentes claimed to be a member of: “[f]ormer truckers in El Salvador

who refused to cooperate with El Salvadoran gang members.” But even assuming

failed to demonstrate past persecution, and the BIA concluded that Petitioners waived any challenge to that finding by failing to brief it on administrative appeal. Petitioners do not challenge those determinations here.

3 23-2686 that the proposed group is cognizable, nothing in the country reports that Petitioners

cite suggests that former drivers have an objectively reasonable fear of future

persecution.

Further, because Petitioners fail to establish a well-founded fear of future

persecution for purposes of asylum, their withholding claims fail as well. See

Duran-Rodriguez, 918 F.3d at 1029 (“To qualify for withholding of removal, an

applicant must satisfy a more stringent standard and demonstrate that it is ‘more

likely than not’ he would be persecuted on account of a protected ground if returned

to the designated country. Because [the petitioner] has not established eligibility for

asylum, it necessarily follows that he has not established eligibility for withholding.”

(internal citation omitted)).

2. The BIA agreed with the IJ’s conclusion that Petitioners failed to

establish their eligibility for CAT relief because they did not demonstrate that they

would be tortured with the acquiescence of a government official if returned to El

Salvador. Petitioners fail to challenge that conclusion here. They have thus forfeited

the issue. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013)

(holding that arguments not raised in a petition for review are forfeited). And

because acquiescence is a necessary element of a CAT claim, Rodriguez-Zuniga v.

Garland, 69 F.4th 1012, 1023 (9th Cir. 2023), Petitioners’ forfeiture of the issue

means we must deny the petition as to the claim for CAT relief.

4 23-2686 PETITION DENIED.

5 23-2686