Josue Zeron-Castaneda v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2022
• Docket: 16-73350
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSUE MIZRAIM ZERON-CASTANEDA, No. 16-73350

Petitioner, Agency No. A202-084-781

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

Respondent.

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

Submitted July 26, 2022** Pasadena, California

Before: PAEZ and WATFORD, Circuit Judges, and BENNETT,*** Senior District Judge.

Petitioner Josue Mizraim Zeron-Castaneda (“Castaneda”) is a native and

citizen of Guatemala who entered the United States in 2014. Castaneda petitions 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). *** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. review of a decision of the Board of Immigration Appeals (“BIA”) upholding the

denial of his application for asylum and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review each issue

raised in this petition for substantial evidence, and we deny the petition for review.

1. Credibility: Substantial evidence supports the Immigration Judge’s

(“IJ’s”) adverse credibility determination. An adverse credibility determination is a

factual finding reviewed for substantial evidence, Yali Wang v. Sessions, 861 F.3d

1003, 1007 (9th Cir. 2017), and is therefore “conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary,” Villavicencio v.

Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018) (quoting Young v. Holder, 697 F.3d

976, 981 (9th Cir. 2012) (en banc)). An IJ must consider “the totality of the

circumstances, and all relevant factors” when evaluating an applicant’s credibility,

8 U.S.C. § 1158(b)(1)(B)(iii), and must “provide specific and cogent reasons in

support of an adverse credibility determination” by referring to “specific instances

in the record.” Shrestha v. Holder, 590 F.3d 1034, 1040, 1042–43 (9th Cir. 2010)

(quoting Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)).

In this case, the BIA affirmed the IJ’s adverse credibility finding based on a

singular inconsistency: whether Castaneda reported the first death threat to the

police. Castaneda claimed in his notarized declaration that he did not take the first

threat seriously and “ignored” it, but later testified that he verbally reported the first

2 threat to the local police unit. This inconsistency impacts the sincerity of Castaneda’s

fear and is not so trivial as to have “no bearing on [his] veracity.” Cf. id. at 1044.

Castaneda failed to articulate a persuasive explanation for this discrepancy, and the

agency found that the letters and declarations he offered were inconsistent with his

later testimony. As this evidence is not so clear that “any reasonable adjudicator

would be compelled to conclude to the contrary,” Villavicencio, 904 F.3d at 663–64.

the BIA’s adverse credibility finding is supported by substantial evidence.

2. Likelihood of Persecution: In light of the adverse credibility finding,

substantial evidence supports the IJ’s determination that Castaneda failed to show

past persecution or a reasonable fear of future persecution. To qualify for asylum,

“the applicant must show that ‘(1) [his] treatment rises to the level of persecution;

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

persecution was committed by the government, or by forces that the government was

unable or unwilling to control.’” Plancarte Sauceda v. Garland, 23 F.4th 824, 832

(9th Cir. 2022) (quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010)); see also 8 U.S.C. § 1101(a)(42)(A). “Either past persecution or a well-

founded fear of future persecution provides eligibility for a discretionary grant of

asylum.” Baghdasaryan, 592 F.3d at 1023 (quoting Ratnam v. INS, 154 F.3d 990,

994 (9th Cir. 1998)); see also 8 C.F.R. § 1208.13(b).

3 Castaneda purports to fear persecution on account of his political opinion

based on two death threats he received from a representative of PAN, an opposing

political party. “Threats on one’s life, within a context of political and social turmoil

or violence, have long been held sufficient to satisfy a petitioner’s burden of showing

an objective basis for fear of persecution.” Kaiser v. Ashcroft, 390 F.3d 653, 658

(9th Cir. 2004). However, the alleged death threats themselves do not compel a

finding of past persecution, see Villegas Sanchez v. Garland, 990 F.3d 1173, 1179

(9th Cir. 2021), and Castaneda’s country conditions reports do not indicate any

political violence perpetrated by PAN or directed against the Patriotic Party.

Moreover, those same reports indicate that the Patriotic Party has been the dominant

party in Guatemala since 2011, and Castaneda testified that the Party assigned

bodyguards to protect him after he reported the second threat. Accordingly,

substantial evidence supports the BIA’s finding that Castaneda does not have a well-

founded fear of persecution, and that the alleged persecution would not be

committed “by the government, or by forces that the government was unable or

unwilling to control.” Plancarte Sauceda, 23 F.4th at 832.

3. Convention Against Torture: Substantial evidence supports the BIA’s

denial of CAT relief. To receive mandatory relief under the Convention, an applicant

must demonstrate that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” Hamoui v. Ashcroft, 389 F.3d 821,

4 826 (9th Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)). Implementing regulations

define torture as “an extreme form of cruel and inhuman treatment,” requiring the

“intentional infliction” of “severe pain or suffering . . . by, or at the instigation of, or

with the consent or acquiescence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 1208.18(a)(1)–(4).

As Castaneda cannot rely on his discredited testimony, the country conditions

reports, declarations, and letters on the record are insufficient to “demonstrate that

he would be subject to a ‘particularized threat of torture.’” Dhital v. Mukasey, 532

F.3d 1044, 1051 (9th Cir. 2008) (per curiam) (quoting Lanza v. Ashcroft, 389 F.3d

917, 936 (9th Cir. 2004)). Cf. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th

Cir. 2010) (per curiam) (“Petitioners’ generalized evidence of violence and crime in

Mexico is not particular to Petitioners and is insufficient to meet [the CAT]

standard.”); Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006)

(“[G]eneral reports indicating that torture occurs in Yemen . . . do not compel the

conclusion that Almaghzar would be tortured if returned.”). Accordingly, substantial

evidence supports the agency’s conclusion that Castaneda has not carried his burden

of proof under the Convention Against Torture. Even if the country conditions report

he offers adequately demonstrates the widespread practice of torture in Guatemala,

the record does not compel a finding that it is more likely than not that Castaneda,

individually, would be tortured upon his return.

5 PETITION DENIED.