Elma Reyes-Guzman v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2022
• Docket: 17-70900
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 20 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELMA ERODITA REYES-GUZMAN, No. 17-70900

Petitioner, Agency No. A206-641-945

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

Respondent.

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

Argued and Submitted April 11, 2022 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and MORRIS,** District Judge.

Elma Erodita Reyes-Guzman, a native and citizen of Honduras, petitions for

review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of

an immigration judge’s (IJ) order denying her application for asylum, withholding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. of removal, and relief under the Convention Against Torture (CAT). We review

“denials of asylum, withholding of removal, and CAT relief for substantial

evidence and will uphold a denial supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Huang v. Holder, 744

F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-Milian v. Holder, 755 F.3d 1026,

1031 (9th Cir. 2014)). Under the substantial evidence standard, we “must uphold

the agency determination unless the evidence compels a contrary conclusion.”

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); see also

Villavicencio v. Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018) (as amended)

(“The BIA’s factual findings are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” (quoting Young v. Holder, 697

F.3d 976, 981 (9th Cir. 2018) (en banc))). We have jurisdiction under 8 U.S.C. §

1252(a)(1), and we deny the petition.

1. Reyes-Guzman bears the burden of establishing that she is eligible for

asylum. 8 C.F.R. § 208.13(a). She “must demonstrate that [s]he has suffered past

persecution or has a well-founded fear of future persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.”

Duran-Rodriguez, 918 F.3d at 1028. The threat from Vargas and harassment from

Liberal Party members, while serious, were not accompanied by any other

2 confrontations or mistreatment. See Duran-Rodriguez, 918 F.3d at 1028

(explaining that the Ninth Circuit has been “most likely to find persecution where

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

mistreatment.’” (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000))). Nor is

there evidence that Vargas or members of the Liberal Party would seek to harm

Reyes-Guzman if she returns to Honduras. Considered cumulatively, the record

does not compel the conclusion that Reyes-Guzman demonstrated past persecution

or a well-founded fear of future persecution. The BIA’s denial of her asylum claim

is supported by substantial evidence.1

2. To qualify for withholding of removal, Reyes-Guzman must

demonstrate “that it is more likely than not that he or she would be persecuted on

account of race, religion, nationality, membership in a particular social group, or

political opinion upon removal to [Honduras].” 8 C.F.R. § 1208.16(b)(2).

Withholding requires the applicant to show “a ‘clear probability’ that [her] life or

freedom would be threatened in the proposed country of removal”—a more

demanding standard than asylum. Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir.

1 The IJ considered the domestic violence Reyes-Guzman faced in her decision. The IJ and BIA were not required to conduct a separate analysis on whether the domestic abuse Reyes-Guzman faced was based on a protected ground because Reyes-Guzman did not raise this argument before the IJ or BIA. 3 2020). When an applicant fails to demonstrate a well-founded fear of persecution,

“it necessarily follows that they do not qualify for withholding of removal.” See

Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1001 n.5 (9th Cir. 2003); see also

Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir. 2008). Because the record does

not compel the conclusion that Reyes-Guzman suffered past persecution or has an

objectively reasonable fear of future persecution, substantial evidence also

supports the BIA’s denial of her withholding of removal claim.

3. Under CAT, it is Reyes-Guzman’s burden to establish that it is more

likely than not that she will be tortured if she returns to Honduras, either by

government officials or with government officials’ acquiescence. 8 C.F.R.

§ 1208.16(c)(2); Garcia-Milian, 755 F.3d at 1033. Nothing in the record indicates

that the BIA failed to consider all the documentary evidence Reyes-Guzman

submitted. See Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). The IJ

stated that she gave full evidentiary weight to the documentary evidence in the

record and there is no “highly probative or potentially dispositive evidence” in the

country condition reports that was overlooked. Cole, 659 F.3d at 771–72. The

BIA’s denial of Reyes-Guzman’s CAT claim was supported by substantial

evidence.

PETITION DENIED