Flores-Serrano v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2023
• Docket: 21-124
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Diana Caroline Flores-Serrano; Fernanda No. 21-124 Elizabeth Aguilar-Flores, Agency Nos. A209-300-676 Petitioners, A209-300-677

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted March 17, 2023** Pasadena, California

Before: PAEZ, MILLER, and VANDYKE, Circuit Judges.

Diana Caroline Flores-Serrano and her minor child petition for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from

the Immigration Judge’s (“IJ”) denial of their applications for asylum,

withholding of removal, and relief under the Convention Against Torture

(“CAT”).

* 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). We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA

adopts the IJ’s decision without opinion, we review the IJ’s decision as the final

agency action. Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir. 2005). We

review for substantial evidence the factual determinations underlying a denial of

asylum and a determination that the petitioner is not eligible for relief under

CAT. Gui v. I.N.S., 280 F.3d 1217, 1228 (9th Cir. 2002) (citing INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992)); Zheng v. Ashcroft, 332 F.3d 1186, 1193

(9th Cir. 2003). We deny the petition for review.

1. Asylum and Withholding of Removal. “To be eligible for asylum, a

petitioner has the burden to demonstrate a likelihood of ‘persecution or a well-

founded fear of persecution on account of . . . membership in a particular social

group.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting

8 U.S.C. § 1101(a)(42)(A)).

Substantial evidence supports the IJ’s determination that Flores-Serrano

failed to demonstrate a likelihood of persecution. The incidents described by

Flores-Serrano do not rise to the level of past persecution contemplated by the

Immigration and Nationality Act. See 8 C.F.R. § 1208.13(b)(1). Although

threats alone can constitute past persecution, “[u]nfulfilled threats are very

rarely sufficient to rise to the level of persecution.” Hussain v. Rosen, 985 F.3d

634, 647 (9th Cir. 2021). We are “most likely to find persecution where threats

are repeated, specific and combined with confrontation or other mistreatment.”

Sharma, 9 F.4th at 1062 (quoting Duran-Rodriguez v. Barr, 918 F.3d 1025,

2 1028 (9th Cir. 2019)). Flores-Serrano did not present such evidence here,

especially as it is not clear that the three gang-related incidents to which she

testified were in any way related. Substantial evidence also supports the IJ’s

determination that Flores-Serrano did not demonstrate a well-founded fear of

future persecution. Although Flores-Serrano testified credibly and established a

subjective fear of persecution, Gui, 280 F.3d at 1228, she has not met her

burden to show that such fear is “objectively reasonable.” Id. (quoting Ladha v.

INS, 215 F.3d 889, 897 (9th Cir. 2000)). There is no evidence that gangs are

looking for Flores-Serrano, and her immediate family members in El Salvador

have not faced harassment.

Moreover, even if Flores-Serrano had established a likelihood of

persecution, substantial evidence supports the IJ’s finding that she failed to

establish that she was persecuted because she is a member of a protected group.

She proposed two particular social groups: (1) individuals who oppose gang

membership and authority; and (2) individuals who took concrete steps to

oppose gang membership and authority. The IJ found that the first group lacked

particularity and that Flores-Serrano did not demonstrate membership in the

second group, as she merely avoided confrontations with the gang and filed a

police report with the National Civil Police of El Congo, Santa Ana

Department, once she reached the United States. See, e.g., Santos-Lemus v.

Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (holding that the proposed

group of “young men in El Salvador resisting gang violence[] is too loosely

3 defined to meet the requirement for particularity”), abrogated on other grounds

by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc);

Henriquez-Rivas, 707 F.3d at 1093 (distinguishing “the very specific situation

of testifying against gang members in court”).

Thus, Flores-Serrano’s claim for asylum fails. Her claim for withholding

of removal necessarily also fails. See Lkhagvasuren v. Lynch, 849 F.3d 800,

803 (9th Cir. 2016).

2. Convention Against Torture. To establish a claim under CAT,

Flores-Serrano must show that it is more likely than not that she will be tortured

if removed to El Salvador. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.

2004) (per curiam). Torture under CAT is “an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman or

degrading treatment or punishment.” Id. (quoting Al-Saher v. I.N.S., 268 F.3d

1143, 1147 (9th Cir. 2001) (quoting 8 C.F.R. § 208.18(a)(2))). Because the IJ

“could reasonably conclude that [Flores-Serrano’s] past harm did not rise to the

level of persecution, it necessarily falls short of the definition of torture.”

Sharma, 9 F.4th at 1067. Substantial evidence supports the IJ’s determination

that Flores-Serrano failed to show that she would be subject to torture if

returned to El Salvador.

The motion to stay removal (Dkt. No. 2) is denied.

PETITION DENIED.