Guevara Valencia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 12, 2024
• Docket: 24-1867
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALEJANDRO GUEVARA No. 24-1867 VALENCIA; MILKA GUEVARA Agency Nos. MAJANO, A220-602-182 A220-602-184 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2024** San Francisco, California

Before: BRESS and FORREST, Circuit Judges, and OHTA, District Judge.***

Alejandro Guevara-Valencia and his minor daughter, natives and citizens of

* 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). *** The Honorable Jinsook Ohta, United States District Judge for the Southern District of California, sitting by designation. El Salvador, petition for review of the Board of Immigration Appeals (“BIA”)

decision. Guevara’s daughter is a derivative beneficiary on his asylum application.

The BIA affirmed an immigration judge (“IJ”) order denying Guevara’s applications

for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”).

We review the BIA’s factual determinations for substantial evidence. Sharma

v. Garland, 9 F.4th 1052, 1060, 1066 (9th Cir. 2021). “Under this 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). We

review questions of law de novo. Martinez v. Barr, 941 F.3d 907, 921 (9th Cir.

2019). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Guevara argues the BIA erred by applying clear error instead of de novo

review in deciding whether the factual record demonstrated past persecution.

Pursuant to 8 C.F.R. § 1003.1(d)(3), the BIA reviews the IJ’s underlying factual

findings for clear error but must review de novo questions of law. Umana-Escobar

v. Garland, 69 F.4th 544, 552 (9th Cir. 2023). Here, the BIA applied the proper

standard of review. The BIA first adopted the IJ’s factual determinations under the

“clear error” standard, before it went on state the basis of its agreement with the IJ’s

legal analysis: that Guevara’s “experiences . . . do not rise to the level of persecution

even when considered cumulatively.” There is no indication that the BIA erred in

2 24-1867 its review of this legal determination.

2. Substantial evidence supports the BIA’s denial of asylum and

withholding of removal. To obtain asylum, petitioners must 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, 9 F.4th at 1059 (quoting 8 U.S.C. § 1101(a)(42)(A)). For withholding of

removal, petitioners must show a “clear probability” of persecution “because of” the

same protected grounds. Id. (citation omitted); 8 U.S.C. § 1231(b)(3)(A). Absent a

presumption of well-founded fear based on past persecution, petitioners must

demonstrate both a “subjectively genuine and objectively reasonable” fear of future

persecution. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017)

(en banc) (citation omitted).

In this case, substantial evidence supports the BIA’s determination that

Guevara demonstrated neither past persecution nor an objectively reasonable fear of

future persecution. Guevara neither experienced physical violence in El Salvador

after witnessing two suspected gang members running away from a murder scene,

nor received any threats—direct or indirect—tied to witnessing this crime. And the

interactions that Guevara and his wife had with three individuals following this

incident, do not constitute persecution because they do not rise to the level of threats

“so menacing as to cause significant actual suffering or harm.” See Lim v. I.N.S.,

3 24-1867 224 F.3d 929, 936 (9th Cir. 2000) (quotations omitted); Sharma, 9 F.4th at 1064

(“[G]enerally anonymous and vague [threats], such as warning [petitioner] of ‘big

trouble’ . . . did not cause ‘significant actual suffering or harm.’”) (quoting Lim, 224

F.3d at 936).1 Because of their ambiguous nature, these interactions also do not

support either the objectively reasonable fear of future persecution required for

asylum or the “clear probability” of persecution required for withholding of removal.

See Sharma, 9 F.4th at 1066.

Further, substantial evidence supports the BIA’s determination that Guevara

failed to establish the required nexus to a protected ground. Guevara testified that

the individuals who asked him for rides were not the same individuals who he

witnessed flee from the scene of a murder. This testimony supports the agency’s

determination that these individuals’ actions were not motivated by protected

grounds. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (holding that a

“desire to be free from harassment by criminals motivated by theft or random

violence by gang members bears no nexus to a protected ground”).

3. Substantial evidence also supports the BIA’s denial of CAT relief. “To

qualify for CAT protection, a petitioner must show . . . it is more likely than not that

1 Guevara also points to a 2016 incident when a taxi driver deviated from his route before ultimately delivering Guevara’s wife safely to her intended destination. However, he articulates no connection between this event and his current claim that he faces persecution for witnessing a gang murder in 2021.

4 24-1867 he or she would be tortured if removed to the proposed country of removal.” Kumar

v. Garland, 110 F.4th 1149, 1159 (9th Cir. 2024) (first quoting Sharma, 9 F.4th at

1067; and then quoting 8 C.F.R. § 208.16(c)(2)). Torture is “any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a

person . . . for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence

of a public official.” Sharma, 9 F.4th at 1067 (quoting 8 C.F.R. § 208.18(a)(1)). As

discussed above, substantial evidence supports the conclusion that Guevara neither

faced past violence from gang members nor had an objectively reasonable fear of

future persecution, much less a particularized risk of torture, from gang members.

Guevara’s general evidence about the Salvadoran government’s inability to stop

gang violence does not suffice to establish that he specifically faced a likelihood of

torture. See Barajas-Romero v. Lynch, 846 F.3d 351, 363 (9th Cir. 2017) (“[P]olice

ineffectiveness is not enough to establish an entitlement to [CAT] relief, absent

evidence of corruption or other inability or unwillingness to oppose criminal

organizations.”) (citation omitted). The record does not compel the conclusion that

it is more likely than not that Guevara would be tortured if he returned to El Salvador.

PETITION DENIED.2

2 Guevara’s motion to stay removal, Dkt. 2, is denied. The temporary stay of removal shall remain in place until the mandate issues.

5 24-1867