Mata-Sanguinetty v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2023
• Docket: 22-334
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ADONAI MATA-SANGUINETTY, No. 22-334

Petitioner, Agency No. A203-607-350

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

Respondent.

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

Submitted March 10, 2023** San Francisco, California

Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE, District Judge.***

Felix Adonai Mata-Sanguinetty (Mata), a native of Venezuela and a citizen

of Venezuela and Colombia, petitions for review of an order of the Board of

Immigration Appeals (BIA) affirming an immigration judge’s (IJ) denial of his

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. applications for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252

and deny the petition.1

When the BIA adopts some of the IJ’s reasoning and adds its own further

analysis, we review both decisions. Vahora v. Holder, 641 F.3d 1038, 1042 (9th

Cir. 2011) (citation omitted). We review the BIA’s denials of asylum,

withholding of removal, and CAT relief for substantial evidence. Garcia-Milian

v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (citing Kamalyan v. Holder, 620

F.3d 1054, 1057 (9th Cir. 2010)). “[T]o reverse the BIA, we must determine ‘that

the evidence not only supports [a contrary] conclusion, but compels it—and also

compels the further conclusion’ that the petitioner meets the requisite standard

for obtaining relief.” Id. (alteration in original) (emphasis omitted) (quoting INS

v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).

1. Substantial evidence supports the conclusion that Mata is ineligible for

asylum and withholding of removal under the so-called “persecutor bar.” An

applicant who has “assisted” or “otherwise participated” in the persecution of any

person on account of political opinion is subject to a mandatory bar to asylum and

withholding of removal. See 8 U.S.C. § 1158(b)(2)(A)(i) (asylum); 8 U.S.C. §

1231(b)(3)(B)(i) (withholding).

1 Mata argues that the IJ erred in finding him not to be credible and concluding that the firm resettlement bar applies to him. Like the BIA, we do not address these issues, as they are not necessary to the disposition of Mata’s claims.

2 22-334 In applying mandatory bars to relief, the government must first make “a

threshold showing of particularized evidence of the bar’s applicability before

placing on the applicant the burden to rebut it.” Budiono v. Lynch, 837 F.3d 1042,

1048 (9th Cir. 2016). But where “the evidence indicates that one or more of the

grounds for mandatory denial of the application for relief”—such as the

persecutor bar—“may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.” 8 C.F.R.

§ 1240.8(d).

The IJ and BIA both reasonably concluded that the government made the

requisite “threshold showing” that the persecutor bar applied. As the IJ noted,

country reports show that Venezuelan security forces and pro-government gangs

called “colectivos” actively attacked protestors during demonstrations against the

Venezuelan government. And Mata’s testimony confirms that he was a member

of security forces present at a protest during that time. Indeed, Mata’s briefing in

this court concedes that he “provided security” for Venezuelan forces during a

protest, where protestors “asphyxiated” from tear gas deployed against them, and

where he was instructed to “allow the colectivos to do as they wished.” Against

the backdrop of political persecution by Venezuelan security forces and

colectivos, the record strongly suggested that the persecutor bar “may apply,”

such that the burden shifted to Mata. 8 C.F.R. § 1240.8(d).

The IJ and BIA also reasonably concluded that Mata failed to carry his

burden of proving by a preponderance of the evidence that the persecutor bar did

3 22-334 not apply. Mata argues that he successfully rebutted the bar by showing that his

actions at the protests were merely passive. In particular, he insists that he never

harmed anyone and claims he was too far removed from the protestors to have

meaningful engagement with their persecution.

The record, however, shows that Mata’s “actions went beyond mere

membership” in a persecuting group but rather that he was “present and active

during the alleged persecution.” Miranda Alvarado v. Gonzales, 449 F.3d 915,

927–28 (9th Cir. 2006) (explaining that the persecutor bar does not require actual

trigger-pulling or direct involvement). As the IJ noted, Mata provided security

services with lethal weapons to the “public order” unit who “interacted directly

with protestors” with nonlethal weapons. His unit was not merely acquiescent

but actively “monitor[ing] the protest,” protecting the public order unit and

“surveilling for any potential sharpshooters or snipers”—and doing so despite

having reason to know protestors were being persecuted by the public order unit

and colectivos.

Mata also argues that his actions were coerced and that the protestors may

not have been persecuted on account of their political opinion. But he fails to

provide evidence or argument compelling either conclusion. We thus deny the

petition as to the claims for asylum and withholding of removal.

2. The IJ and BIA also denied Mata CAT protection. The petition

addresses this issue only briefly and fails to cite any portion of the record

compelling the conclusion that Mata, in particular, is more likely than not to be

4 22-334 tortured. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per

curiam).

PETITION DENIED. The motion to stay removal (Dkt. No. 2) is

DENIED as moot.

5 22-334