Juarez Francisco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2024
• Docket: 23-556
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL JUAREZ FRANCISCO, No. 23-556 Agency No. Petitioner, A205-988-732 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 8, 2024** Pasadena, California

Before: W. FLETCHER, CALLAHAN, and DE ALBA, Circuit Judges.

Petitioner Daniel Juarez Francisco (“Petitioner”), a native and citizen of

Guatemala, seeks review of a decision by the Board of Immigration Appeals (“the

Board”) affirming an Immigration Judge’s (“IJ”) denial of Petitioner’s application

* 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 asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). We typically review only the Board’s decision but will review

both the Board’s decision and IJ’s decision if the Board adopts the IJ’s reasoning.

Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). We must uphold the Board’s

decision if it is supported by substantial evidence. Go v. Holder, 640 F.3d 1047,

1052 (9th Cir. 2011) (citation omitted). We have jurisdiction pursuant to 8 U.S.C.

§ 1252 and deny the petition for review.

1. Substantial evidence supports the denial of Petitioner’s application for

asylum and withholding of removal because Petitioner did not show that he

suffered past persecution on account of a protected category or show a well-

founded fear of future persecution if returned to his home country. Petitioner bears

the burden of demonstrating “persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A). “To be eligible for withholding of

removal, the petitioner must discharge this burden by ‘a clear probability.’”

Sharma v. Garland, 9 F.4th 1052, 1059–60 (9th Cir. 2023) (quoting Alvarez-

Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003)). Persecution is an extreme

concept and not every form of abhorrent harassment or intimidation qualifies.

Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003). “[N]ot all negative

treatment equates with persecution.” Lanza v. Aschcroft, 389 F.3d 917, 934 (9th

2 23-556 Cir. 2004). Petitioner claims that he was persecuted on account of his indigenous

heritage and his religion. However, the encounters Petitioner discusses

demonstrate harassment on account of a protected category. Petitioner does not

allege that he, or his family, was physically harmed or threatened with harm during

this harassment. Nor does he allege that he, or his family, was physically harmed

or threatened with harm on account of a protected category on any other occasion.

And Petitioner fails to provide evidence that would demonstrate a well-founded

fear of future persecution if returned to Guatemala. Therefore, substantial

evidence supports the Board’s decision.

2. Substantial evidence supports denial of relief under CAT. “To qualify

for relief under [CAT], the torture must be inflicted by or at the instigation of or

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

official capacity.” Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting

8 C.F.R. § 208.18(a)(1)) (quotation marks omitted). “Acquiescence of a public

official requires that the public official, prior to the activity constituting torture,

have awareness of such activity and thereafter breach his or her legal responsibility

to intervene to prevent such activity.” 8 C.F.R. § 208.18(a)(7). “[A] general

ineffectiveness on the government’s part to investigate and prevent crime will not

suffice to show acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th

Cir. 2016) (citing Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014)).

3 23-556 Petitioner never contacted law enforcement to report the harassment he suffered.

Nor did he expound on his reasons for believing that law enforcement would be

unwilling to assist him. Though it is unfortunate that Petitioner could not easily

contact law enforcement, he provided only generalized statements to support his

claim that a public official would acquiesce in his torture. Therefore, substantial

PETITION DENIED.1

1 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied.

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