Escalante-Anzora v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2024
• Docket: 23-936
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE REMBERTO ESCALANTE- No. 23-936 ANZORA, Agency No. A206-146-346 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 4, 2024** Portland, Oregon

Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.

Petitioner Jose Remberto Escalante-Anzora, a native and citizen of El

Salvador, seeks review of an order of the Board of Immigration Appeals (“BIA”)

affirming a decision by the Immigration Judge (“IJ”) denying his applications for

* 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). asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we affirm.1

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027-28 (9th Cir.

2019) (cleaned up). “We review factual findings for substantial evidence and legal

questions de novo.” Manzano v. Garland, 104 F.4th 1202, 1206 (9th Cir. 2024)

(cleaned up). “Under the substantial evidence standard, factual findings are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Id. (cleaned up).

To be eligible for asylum, Petitioner “must demonstrate that 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 (citing 8 U.S.C. § 1101(a)(42)).

Petitioner does not contest the BIA’s conclusion that he waived any challenge to

the IJ’s determination that Petitioner failed to establish past persecution. Therefore,

to be eligible for asylum, Petitioner must establish “a well-founded fear of future

persecution.” Gonzalez-Lara v. Garland, 104 F.4th 1109, 1116 (9th Cir. 2024)

1 Petitioner’s pending motion to stay removal, Dkt. 3, is denied as moot. The temporary stay of removal remains in effect until issuance of the mandate.

2 (citing 8 C.F.R. § 1208.13(b)(2)). “An applicant must establish a well-founded fear

of 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.” Id. (cleaned up).

Here, substantial evidence supports the BIA’s determination that Petitioner

failed to establish his fear of future persecution in El Salvador is objectively

reasonable. Petitioner alleges a fear of persecution by the Mara Salvatrucha (“MS-

13”) gang based on two incidents: (1) his former classmate and MS-13 gang

member’s verbal directive that Petitioner join the gang in 2013, and (2) a

threatening WhatsApp message sent by his sister’s ex-boyfriend and MS-13 gang

member to Petitioner’s brother in 2017.

To the extent Petitioner argues that the BIA erred by not considering the

gang recruitment attempt in holistically assessing the objective reasonableness of

his fear of future persecution, we disagree. Petitioner did not challenge dispositive

findings regarding this particular incident before the BIA, but even if he did, the

entirety of the exchange appears to be the former classmate’s statement that

Petitioner “had to belong to the gang.” The classmate did not demand an answer at

that time or detail the consequences if Petitioner refused to comply. Although the

classmate carried a gun, he did not point the firearm at Petitioner. Petitioner fled

the country shortly afterwards, without answering. Petitioner’s fear of future

3 persecution based on his former classmate telling him he “had to belong to the

gang” is thus not objectively reasonable.

As for the second incident, the WhatsApp message was directed primarily

towards Petitioner’s brother and only secondarily towards his family. The message

states that the ex-boyfriend will give Petitioner’s brother “a beating” the next time

the ex-boyfriend sees him for his failure to provide Petitioner’s sister’s contact

information. The message also warns that the ex-boyfriend “will be waiting” for

Petitioner’s sister “or anyone of her family” to return, as “no one messes with the

Mara Salvatrucha 13.” Although threatening, the message does not mention any

family members by name or specify the threatened future harm. The record also

does not include evidence that Petitioner or anyone in his family has received any

other threats from MS-13 gang members since then. Thus, substantial evidence

supports the BIA’s finding that Petitioner’s fear of harm was “too speculative” to

support his claims for relief. Id. at 1116.

Without a showing of “a well-founded fear of future persecution” for

asylum, Petitioner’s withholding claim necessarily fails as well. See Garcia v.

Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021) (“The ‘clear probability’ standard

for withholding is a more stringent burden of proof than the standard for asylum,

which does not require that the applicant demonstrate that harm would be more

likely than not to occur.”).

4 Finally, substantial evidence also supports the BIA’s denial of CAT relief.

To obtain CAT relief, Petitioner must show that it is more likely than not that he

would be tortured by or with the acquiescence of the Salvadoran government if

removed. See id. at 1147. Petitioner received his threats from private actors, and

the record evidence does not compel the conclusion that Salvadoran officials

would acquiesce in Petitioner’s torture by the MS-13 gang if he returned to El

Salvador. See Manzano, 104 F.4th at 1206. Although the record includes evidence

that the Salvadoran government has difficulty controlling gangs, the record also

includes evidence of efforts by the Salvadoran government to combat gang

violence. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A]

general ineffectiveness on the government’s part to investigate and prevent crime

will not suffice to show acquiescence.”).

PETITION DENIED.