Morales Sandoval v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 29, 2024
• Docket: 23-1163
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE ALBERTO MORALES No. 23-1163 SANDOVAL, Agency No. A206-876-656 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 22, 2024** Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Petitioner Jorge Alberto Morales Sandoval, a native and citizen of El

Salvador, petitions for review of the Board of Immigration Appeals’ (BIA) order

dismissing his appeal from an Immigration Judge’s (IJ) decision denying asylum,

* 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). withholding of removal, and protection under the Convention Against Torture

(CAT). Because the parties are familiar with the facts, we do not recount them

here. We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA cited

Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and provided its own

reasoning, we review both the IJ’s and BIA’s decisions. Rudnitskyy v. Garland, 82

F.4th 742, 746 (9th Cir. 2023). Reviewing legal conclusions de novo and factual

findings for substantial evidence, id., we deny the petition.

1. To the extent Morales Sandoval argues he is entitled to asylum, his claim

is foreclosed by his failure to challenge the BIA’s conclusion that he waived any

argument concerning the timeliness of his asylum application. See Marmolejo-

Campos v. Holder, 558 F.3d 903, 913 n.12 (9th Cir. 2009) (en banc); Matter of R-

A-M-, 25 I. & N. Dec. 657, 658 n.2 (BIA 2012).

2. To be eligible for withholding of removal, a petitioner must establish a

clear probability of persecution. See Sharma v. Garland, 9 F.4th 1052, 1059–60

(9th Cir. 2021). Persecution “is an extreme concept that means something

considerably more than discrimination or harassment.” Id. at 1060 (citation

omitted). In Sharma, we identified a non-exhaustive list of factors to guide our

assessment of whether the cumulative effect of incidents a petitioner has suffered

rises to the level of persecution. Id. at 1061–63. Here, applying those factors, we

conclude that Morales Sandoval has not shown error in the BIA’s conclusion that

2 23-1163 he did not establish past persecution. Morales Sandoval was kicked in the stomach

once and did not suffer any injuries requiring medical treatment. The threat from

Perez was also an isolated incident and did not inflict any actual suffering or

harm. See Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir.

2021). Moreover, Perez did not harm Morales Sandoval’s family and Morales

Sandoval was unaware of any harm to other political workers for Gran Alianza por

la Liberacion Nacional (GANA).

As for future persecution, Morales Sandoval does not argue that, in the

absence of a rebuttable presumption of future persecution, he has demonstrated a

clear probability of future persecution, 8 C.F.R. § 1208.16(b)(2). See Al-Harbi v.

INS, 242 F.3d 882, 888–90 (9th Cir. 2001). But even if he did, substantial

evidence supports the BIA’s conclusion that Morales Sandoval did not establish

that persecution would be committed “by forces that the government was unable or

unwilling to control.” See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th

Cir. 2020) (citation omitted); Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th

Cir. 2005). Here, Morales Sandoval told the police that Perez kicked him, and they

told him they would investigate the incident. Because Morales Sandoval left El

Salvador shortly after making the report, the record does not compel the conclusion

that police were unable or unwilling to protect him. See Truong v. Holder, 613

F.3d 938, 941–42 (9th Cir. 2010) (per curiam). Moreover, GANA won local

3 23-1163 elections shortly after Morales Sandoval left El Salvador, and nothing suggests the

government is presently unable or unwilling to control persecution of GANA

members.

3. Substantial evidence also supports the BIA’s conclusion that Morales

Sandoval did not establish that he would more likely than not suffer torture if

returned to El Salvador. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th

Cir. 2014). Morales Sandoval had two isolated incidents with Perez, but they did

not rise “to the level of torture, which is reserved for extreme cruel and inhuman

treatment that results in severe pain or suffering.” Tzompantzi-Salazar v. Garland,

32 F.4th 696, 706 (9th Cir. 2022) (citing 8 C.F.R. § 1208.18(a)). Further, almost

ten years have passed since Perez last interacted with Morales Sandoval, and no

evidence suggests that Perez remains interested in harming Morales Sandoval.

PETITION DENIED.1

1 The temporary stay of removal shall remain in effect until issuance of the mandate. The motion for stay of removal is otherwise denied.

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