Miguel Marin Ortega v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2021
• Docket: 20-70418
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIGUEL ROBERTO MARIN ORTEGA, No. 20-70418 AKA Roberto Marin Ortega, Agency No. A200-551-312 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Miguel Roberto Marin Ortega, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his appeal

from an immigration judge’s (“IJ”) decision denying his application for

withholding of removal and relief under the Convention Against Torture (“CAT”).

* 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). 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 review de novo claims of due process violations in immigration

proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the

petition for review.

We reject as unsupported by the record Marin Ortega’s contention that the

BIA misstated the harm he experienced in Guatemala.

The record also does not compel the conclusion that Marin Ortega

established a clear probability of future persecution. See Nagoulko, 333 F.3d at

1018 (possibility of future persecution “too speculative”). We reject as

unsupported by the record Marin Ortega’s contention that the BIA ignored his

argument that the IJ erred in her future persecution analysis.

Marin Ortega’s request for a remand, raised in his opening brief, based on

the BIA’s reference to the “reasonable possibility” standard, is denied because the

BIA adopted and affirmed the IJ’s decision under Matter of Burbano, 20 I. & N.

Dec. 872 (BIA 1994), and the IJ cited the applicable “clear probability” standard.

See Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010) (where BIA adopted

and affirmed IJ decision citing Burbano, the court looked through the BIA’s

decision and treated the IJ’s decision as the final agency decision).

Thus, Marin Ortega’s withholding of removal claim fails.

2 20-70418 Substantial evidence supports the agency’s denial of CAT relief because

Marin Ortega failed to show it is more likely than not he 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); see also Zheng v. Holder, 644 F.3d

829, 835-36 (9th Cir. 2011) (possibility of torture too speculative).

Marin Ortega’s contentions that the BIA misstated the record and the agency

erred by failing to mention evidence fail as unsupported by the record. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due

process claim); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010)

(the agency need not write an exegesis on every contention).

PETITION FOR REVIEW DENIED.

3 20-70418