Mireyda Sarceno-Florian v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 28, 2018
• Docket: 16-72694
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIREYDA SARCENO-FLORIAN, No. 16-72694

Petitioner, Agency No. A206 432 329

v. MEMORANDUM*

MATTHEW WHITAKER, Acting Attorney General,

Respondent.

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

Submitted November 14, 2018** San Francisco, California

Before: GRABER and BENNETT, Circuit Judges, and KOBAYASHI,*** District Judge.

Mireyda Sarceno-Florian, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. from an immigration judge’s (“IJ”) order of removal and denial of her application

for asylum and withholding of removal. We have jurisdiction under 8 U.S.C.

§ 1252. We review the BIA’s legal determinations de novo and the factual

findings underlying the BIA’s determination for substantial evidence.

Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We deny the petition

for review.

Substantial evidence supports the BIA’s holding that Sarceno-Florian’s past

experiences in Guatemala do not rise to the level of persecution because the

murders of her family members and the attempted kidnapping of her friend were

not part of a pattern of persecution closely tied to Sarceno-Florian. See Wakkary

v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009); Arriaga-Barrientos v. INS, 937

F.2d 411, 414 (9th Cir. 1991). Although the threats that Sarceno-Florian received

were serious, the record does not compel the conclusion that these threats inflicted

sufficient “suffering or harm” to support a finding of past persecution because, as

Sarceno-Florian testified, the agent of persecution had been imprisoned and neither

she nor her family had been harmed or threatened since he was imprisoned. See

Lim v. INS, 224 F.3d 929, 936-37 (9th Cir. 2000) (concluding that death threats,

without more, did not constitute past persecution where the petitioner was not

harmed or confronted and his family remained safe for years following the threats).

2 Substantial evidence supports the BIA’s determination that the Guatemalan

government is willing and able to control the agent of persecution based on his

arrest and subsequent imprisonment, and the BIA properly considered Sarceno-

Florian’s failure to report the threats as one factor in reaching that conclusion. See,

e.g., Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010) .

The BIA also properly concluded that Sarceno-Florian failed to establish an

“objectively reasonable fear of future persecution.” Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc). Sarceno-Florian testified

that the agent of persecution remains in prison and that she has no knowledge of

him directly or indirectly harming anyone since he was imprisoned.

Because Sarceno-Florian failed to establish eligibility for asylum, she

necessarily failed to meet the more stringent standard for withholding of removal.

Ming Dai v. Sessions, 884 F.3d 858, 874 (9th Cir. 2018).

Petition DENIED.