Diego Francisco Pablo v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIEGO ARMANDO FRANCISCO No. 20-70016 PABLO, AKA Jose Alvarado Vasquez, AKA Jose Velasquez Alvarado; et al., Agency Nos. A088-355-319 A208-605-359 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 14, 2021**

Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.

Diego Armando Francisco Pablo and his child, natives and citizens of

Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing their appeal from an immigration judge’s decision denying their

* 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). application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We

review factual findings for substantial evidence. Conde Quevedo v. Barr, 947 F.3d

1238, 1241 (9th Cir. 2020). We review de novo questions of law. Bhattarai v.

Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We deny the petition for review.

Substantial evidence supports the determination that petitioners failed to

establish that the harm they experienced from members of the Civil Society rose to

the level of persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028-29

(9th Cir. 2019) (record did not compel the conclusion that threats rose to the level

of persecution). Substantial evidence also supports the determination that

petitioners failed to establish that the harm they experienced or fear from the Civil

Society was or would be on account of an actual or imputed political opinion. See

Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (“To establish a nexus

to the political opinion ground, the [petitioners] must show (1) that [they] had

either an affirmative or imputed political opinion, and (2) that they were targeted

on account of that opinion.”); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010) (an applicant’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”).

2 20-70016 Substantial evidence further supports the determination that, even under a

disfavored group analysis, petitioners failed to demonstrate sufficient

individualized risk of harm to establish a well-founded fear of persecution on

account of their indigenous ethnicity. See Tampubolon v. Holder, 610 F.3d 1056,

1062 (9th Cir. 2010) (explaining that “a petitioner’s membership in a disfavored

group is not sufficient by itself to meet [the petitioner’s] ultimate burden of proof;

some evidence of individualized risk is necessary for the petitioner to succeed”

(citation and internal quotation marks omitted)).

Thus, petitioners’ asylum and withholding of removal claims fail.

The BIA did not err in its determination that Francisco Pablo waived any

challenge to the IJ’s denial of CAT relief. See Alanniz v. Barr, 924 F.3d 1061,

1068-69 (9th Cir. 2019) (no error in BIA’s waiver determination).

We reject as unsupported by the record petitioners’ contentions that the IJ or

BIA ignored evidence, applied an incorrect standard, failed to address arguments,

or otherwise erred in the analysis of their claims.

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 20-70016