Manuel Fontes Garcia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2023
• Docket: 20-70729
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 10 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL FONTES GARCIA, No. 20-70729

Petitioner, Agency No. A201-564-438

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

Respondent.

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

Submitted March 6, 2023** Las Vegas, Nevada

Before: CLIFTON, BYBEE, and BENNETT, Circuit Judges.

Petitioner Manuel Fontes Garcia, a native and citizen of Cuba, seeks review

of the Board of Immigration Appeals’ (BIA) decision denying his application for

asylum. The BIA affirmed the immigration judge’s (IJ) determination that Fontes

* 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). Garcia was ineligible for asylum because the treatment he complained of was

prosecution, not persecution, and he failed to establish past persecution or a well-

founded fear of future persecution. Because substantial evidence supports finding

that Fontes Garcia’s treatment was not persecution due to political opinion we deny

the petition.

We have jurisdiction to review the BIA’s decision under 8 U.S.C. §

1252(a)(1). Where, as here, the BIA affirms the IJ and incorporates the IJ’s

reasoning, we review both the decision of the BIA and the IJ. Sinotes-Cruz v.

Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). We review factual findings,

including whether an applicant demonstrated asylum eligibility, for substantial

evidence. Rodrigues Tornes v. Garland, 993 F.3d 743, 750 (9th Cir. 2021). The

BIA’s findings are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

To establish eligibility for asylum, an applicant must demonstrate either past

persecution or a well-founded fear of future persecution and that the “persecution

was or will be on account of” a protected ground (race, religion, nationality,

membership in a particular social group, or political opinion). Ayala v. Holder,

640 F.3d 1095, 1097 (9th Cir. 2011); see 8 U.S.C. §§ 1158(b)(1)(A),

1101(a)(42)(A). “[T]he protected ground cannot play a minor role . . . [I]t cannot

2 be incidental, tangential, superficial, or subordinate to another reason for harm.”

Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (citation omitted).

Importantly, “[w]e have long distinguished persecution from prosecution,” Li v.

Holder, 559 F.3d 1096, 1108 (9th Cir. 2009), and “[p]ersons avoiding lawful

prosecution for common crimes are not ordinarily deemed refugees.” Chanco v.

INS, 82 F.3d 298, 301 (9th Cir. 1996). Furthermore, “[i]t is only where there

appears to be no other logical reason for the persecution at issue that the IJ may

draw the inference that the police investigation is a subterfuge for political

harassment.” Dinu v. Ashcroft, 372 F.3d 1041, 1045 (9th Cir. 2004) (internal

quotation marks and citation omitted).

Substantial evidence supports the IJ and BIA’s conclusion that the treatment

Fontes Garcia complains of was prosecution rather than persecution on the basis of

political opinion. Fontes Garcia provided evidence, including payment receipts

and a court order, of fines for failing to provide proof of purchase for the

merchandise in his stores. Further, he testified that he does not belong to any

particular social group and denied activity in anti-government parties or

organizations. There is no evidence aside from Fontes Garcia’s testimony that

police confiscated his goods, detained him, and fined him because of his pro-

private business views.

3 Furthermore, on the record in this case, a reasonable adjudicator would not

be compelled to conclude that Fontes Garcia suffered past persecution or had a

well-founded fear of future persecution in Cuba. “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) (internal

quotation marks and citation omitted). This court has recognized that “[t]hreats

standing alone . . . constitute past persecution in only a small category of cases, and

only when the threats are so menacing as to cause significant actual suffering or

harm.” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (internal quotation marks

and citation omitted).

Fontes Garcia alleges that the police repeatedly confiscated merchandise,

detained him, and issued fines for failure to provide proof of purchase of the goods

at his businesses. He was never physically injured while detained. As discussed

above, this type of treatment supports an inference of prosecution rather than

persecution. See Ahmed v. Keisler, 504 F.3d 1183, 1195 (9th Cir. 2007)

(explaining that “[o]rdinary prosecution for criminal activity is generally not a

ground for relief,” but “if the prosecution is motivated by a protected ground, and

the punishment is sufficiently serious or disproportionate, the sanctions imposed

can amount to persecution”).

4 Because the record does not compel a conclusion of past persecution, Fontes

Garcia must demonstrate a well-founded fear of future persecution with 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). He must show “by credible, direct, and specific evidence in the

record . . . facts supporting a reasonable fear of persecution on the relevant

ground.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). The record

does not compel a conclusion that Fontes Garcia demonstrated a well-founded fear

of future persecution. As the IJ and BIA recognized, he was able to live and work

in Cuba, obtain business permits and renew those permits, obtain a passport and

freely travel out of the country, and own and sell property in the country. See

Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir. 1987) (well-founded fear

undermined by the fact that petitioner was “able to leave the country . . . without

any interference from the government”). Further, the Country Conditions Report

demonstrated that roughly one-third of Cuba’s total workforce works in the private

sector, suggesting that the government does not systematically persecute all those

who work in the private sector for their political opinions.

The temporary stay of removal remains in place until the mandate

issues. The motion for a stay of removal is otherwise denied.

5 PETITION DENIED.