Mateo Diego v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2024
• Docket: 23-1583
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EFRAIN MATEO DIEGO, No. 23-1583 Agency No. Petitioner, A029-277-939 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 2, 2024**

Before: OWENS, LEE, and BUMATAY, Circuit Judges.

Petitioner Efrain Mateo Diego is a native citizen of Guatemala and seeks

review of a finding of no reasonable fear and an accompanying reinstatement of a

prior order of removal. We have authority to review reasonable-fear

determinations and reinstatement orders under 8 U.S.C. § 1252(a)(1), (5). We

* 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). review due process claims de novo and reasonable-fear and torture determinations

for substantial evidence. See Zhao v. Mukasey, 540 F.3d 1027, 1030 (9th Cir.

2008); Orozco-Lopez v. Garland, 11 F.4th 764, 774 (9th Cir. 2021); Bartolome v.

Sessions, 904 F.3d 803, 811 (9th Cir. 2018). We deny the petition.

An order of removal was first issued against Petitioner in 1999 and he was

removed from the United States in 2012. After illegally reentering the country in

2015, the Department of Homeland Security reinstated Petitioner’s prior order of

removal under “a streamlined process for removal [because he] return[ed] illegally

to this country after a previous removal order[.]” Tomas-Ramos v. Garland, 24

F.4th 973, 976 (4th Cir. 2022). But Petitioner expressed fear at being removed to

Guatemala, and so was given a reasonable-fear interview by an asylum officer on

June 30, 2023. The asylum officer determined that Petitioner did not have a

reasonable fear; an Immigration Judge (IJ) affirmed in an oral opinion.

1. Substantial evidence supports the negative reasonable-fear determination.

Petitioner can only have his removal withheld if he can establish a clear probability

that, if returned to his homeland, he would be persecuted on account of a

statutorily protected ground under the Immigration and Nationality Act § 241. 8

U.S.C. § 1231(b)(3)(A). Determining “[w]hether particular conduct constitutes

persecution or [mere] random violence [requires an examination of] the

perpetrator’s motive.” Bromfield v. Mukasey, 543 F.3d 1071, 1076 (9th Cir. 2008)

2 23-1583 (simplified). Based on Petitioner’s testimony, the asylum officer found that

“during the time the 18th Street Gang members were threatening and harming the

applicant, they never mentioned his skin color or dialect. The gang members only

warned the applicant to pay the quota so they would not harm him or his family.”

By targeting Petitioner for purely economic reasons, he was experiencing random

violence, not persecution. Additionally, Petitioner failed to prove that he could not

relocate within Guatemala to avoid the gang (a requirement for demonstrating a

risk of future persecution). See Hussain v. Rosen, 985 F.3d 634, 649 (9th Cir.

2021) (citing 8 C.F.R. § 1208.13(b)(3)(i)). Substantial evidence thus supports the

determination against reasonable fear of past or future persecution.

2. Substantial evidence also supports the IJ’s denial of Petitioner’s claims

regarding the Convention Against Torture (CAT). First, because the IJ found that

Petitioner lacks a reasonable possibility of being persecuted, substantial evidence

supports that Petitioner lacks a reasonable possibility of being tortured. Torture is

a concept “more severe than persecution,” and has a correspondingly higher

standard of proof. Guo v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018) (citing

Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005)); see also 8 C.F.R. §

1208.31(c). Second, government involvement or acquiescence is required for a

successful CAT claim, and Petitioner failed to meet his burden of proof under 8

C.F.R. § 1208.18(a)(1). Substantial evidence supports the IJ determination that

3 23-1583 criminal gangs do not act “at the instigation or with the consent or acquiescence of

the government.” Reyes-Reyes v. Ashcroft, 384 F.3d 782, 787 (9th Cir. 2004)

(simplified). So Petitioner’s CAT claim independently fails because there is no

risk of torture stemming from the action or inaction of the Guatemalan

government. See id.

3. Petitioner’s due process claims relating to his delayed reasonable-fear

interview are meritless. For a successful procedural due process claim, an alien

“must show that the violation prejudiced him.” Morales-Izquierdo v. Gonzales,

486 F.3d 484, 495 (9th Cir. 2007) (simplified). “To show prejudice, [an alien]

must present plausible scenarios in which the outcome of the proceedings would

have been different if a more elaborate process were provided.” Id (simplified).

But here, Petitioner failed to demonstrate that the IJ’s ruling would have changed

absent the delay. In fact, the IJ affirmed the negative reasonable-fear

determination despite the assumption that “[Petitioner] would face torment from

the gangs if [he] went back[.]” Since the IJ agreed with Petitioner about future

gang violence, it is difficult to see how the reasonable-fear interview delay could

have caused Petitioner any prejudice. Petitioner was not deprived of due process.

PETITION DENIED.

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