Guevara-Diaz v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2023
• Docket: 22-435
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AMILCAR GUEVARA-DIAZ, No. 22-435 Agency No. Petitioner, A206-898-785 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 17, 2023**

Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.

Amilcar Guevara-Diaz, a native and citizen of El Salvador, petitions pro se

for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of

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

have jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual findings

* 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). for substantial evidence and its legal conclusions de novo. Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Where, as here, the BIA

affirms the IJ’s reasoning and also adds its own comments, we review both

decisions. Gonzalez Castillo v. Garland, 47 F.4th 971, 976 (9th Cir. 2022). We

deny the petition for review.

To establish eligibility for asylum, “a petitioner has the burden to

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)

(quoting 8 U.S.C. § 1101(a)(42)(A)). A petitioner may demonstrate past

persecution by showing that “(1) he has endured serious harm such that his

treatment rises to the level of persecution; (2) the persecution was committed by

the government, or by forces that the government was unable or unwilling to

control; and (3) the persecution was on account of one or more protected grounds,

such as a political opinion.” Singh v. Garland, 57 F.4th 643, 652 (9th Cir. 2022)

(internal quotation marks and citations omitted). “Persecution is ‘an extreme

concept that does not include every sort of treatment our society regards as

offensive.’” Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (citation

omitted).

Substantial evidence supports the BIA’s conclusion that Guevara-Diaz did

2 22-435 not demonstrate past persecution.1 Guevara-Diaz credibly testified before the IJ

that he fled El Salvador following four frightening encounters with a rival

political party on account of his work for the Grand Alliance for National Unity

during a local election in 2015. These encounters included threats of death and

beatings, one of which inflicted bruises requiring pain medication. Guevara-

Diaz’s experiences, while troubling, do not compel the conclusion that he endured

serious harm amounting to persecution. See Singh, 57 F.4th at 653–57 (reviewing

analogous cases and concluding that a petitioner suffered past persecution where

political opponents followed and physically beat petitioner and his brother over a

period of years). Although “we do not require severe injuries to meet the serious-

harm prong of the past-persecution analysis,” id. at 654, we have “repeatedly

denied petitions for review when, among other factors, the record did not

demonstrate significant physical harm,” Sharma, 9 F.4th at 1061.

Absent a finding of past persecution, Guevara-Diaz is not entitled to a

presumption of future persecution. See Sharma, 9 F.4th at 1060; 8 C.F.R.

§ 1208.13(b)(1). Even excusing Guevara-Diaz’s forfeiture of a challenge to the

IJ’s adverse internal relocation finding, see Santos-Zacaria v. Garland, 143 S. Ct.

1103, 1112 (2023) (holding that 8 U.S.C. § 1252(d)(1)’s exhaustion requirement

is a claim-processing rule, not a jurisdictional bar), substantial evidence supports

1 Although “the standard of review for past persecution is currently unsettled,” Antonio v. Garland, 58 F.4th 1067, 1072 n.8 (9th Cir. 2023), the agency’s fact-bound analysis here calls for a deferential substantial evidence review, see Flores-Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022).

3 22-435 the BIA’s conclusion that Guevara-Diaz did not demonstrate a well-founded fear

of future persecution. The record does not show that the political opponents who

antagonized Guevara-Diaz during the 2015 election have a “continuing interest”

in him today. See Sharma, 9 F.4th at 1065. Although Guevara-Diaz’s father

attested that members of the rival party asked after Guevara-Diaz following his

departure, the father’s statement does not specify the extent or severity of these

inquiries. Ultimately, without additional evidence about the current political

climate and enduring threats to Guevara-Diaz, his concerns are “too speculative

to be credited as a basis for fear of future persecution.” Silva v. Garland, 993

F.3d 705, 718 (9th Cir. 2021) (quoting Nagoulko v. INS, 333 F.3d 1012, 1018

(9th Cir. 2003)).

Consequently, we deny Guevara-Diaz’s petition with respect to his asylum

and withholding of removal claims. See Davila v. Barr, 968 F.3d 1136, 1142 (9th

Cir. 2020) (“An applicant who fails to satisfy the lower standard for asylum

necessarily fails to satisfy the more demanding standard for withholding of

removal.”).

Substantial evidence also supports the BIA’s denial of Guevara-Diaz’s

CAT claim. To establish eligibility for CAT protection, a petitioner must show

“that it is more likely than not that he will be tortured upon removal, and that the

torture will be inflicted at the instigation of, or with the consent or acquiescence

of, the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).

“Torture” is “an extreme form of cruel and inhuman treatment and does not

4 22-435 include lesser forms of cruel, inhuman or degrading treatment or punishment.” 8

C.F.R. § 1208.18(a)(2). Accordingly, “[d]emonstrating torture requires a much

greater showing of harm than demonstrating persecution.” Hernandez v.

Garland, 52 F.4th 757, 769 (9th Cir. 2022). Although Guevara-Diaz faced

significant adversity as a result of his political views, he has not proffered

evidence that the incidents he endured amounted to torture or are “more likely

than not” to reoccur. Thus, substantial evidence supports the BIA’s denial of

Guevara-Diaz’s CAT claim.

PETITION DENIED.

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