Juan Rodas-Joaquin v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2021
• Docket: 20-71351
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN RODAS-JOAQUIN; RODAS No. 20-71351 ALEXANDER DOMINGUEZ-DIEGUEZ, Agency Nos. A209-143-170 Petitioners, A209-143-171

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

Respondent.

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

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Juan Rodas-Joaquin and Rodas Alexander Dominguez-Dieguez, natives and

citizens of Guatemala, petition for review of the Board of Immigration Appeals’

(“BIA”) order dismissing their appeal from an immigration judge’s decision

denying their applications for asylum, withholding of removal, and relief under the

* 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). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-

85 (9th Cir. 2006) We deny the petition for review.

In their opening brief, petitioners do not make any argument challenging the

agency’s decision to exclude the 2015 automobile accident from consideration in

its past persecution analysis. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-

80 (9th Cir. 2013) (issues not specifically raised and argued in a party’s opening

brief are waived). Substantial evidence supports the agency’s determination that

the harm petitioners suffered did not rise to the level of persecution. See Kohli v.

Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (noting that persecution “is an

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

offensive” (internal quotation marks and citation omitted)). Substantial evidence

also supports the agency’s determination that petitioners failed to establish an

objectively reasonable fear of future persecution in Guatemala. See Nagoulko v.

INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too

speculative”). Thus, petitioners’ asylum claim fails.

In this case, because petitioners failed to establish eligibility for asylum, they

failed to establish eligibility for withholding of removal. See Zehatye, 453 F.3d at

1190.

2 20-71351 Substantial evidence supports the agency’s denial of CAT relief because

petitioners failed to show it is more likely than not they will be tortured by or with

the consent or acquiescence of the government if returned to Guatemala. See Aden

v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We do not consider the materials petitioners reference in their opening brief

that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963

(9th Cir. 1996) (en banc) (court’s review is limited to “the administrative record

upon which the [removal] order is based” (internal quotation marks and citation

omitted)).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 20-71351