Muniz-Cunha v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2024
• Docket: 23-1392
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RAFAEL CESAR MUNIZ-CUNHA, No. 23-1392 Agency No. Petitioner, A208-208-947 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 25, 2024** San Francisco, California

Before: CLIFTON, SUNG, and SANCHEZ, Circuit Judges.

Petitioner Rafael Cesar Muniz-Cunha, a native and citizen of Brazil, seeks

review of an order of the Board of Immigration Appeals (“BIA”) affirming a

decision by the Immigration Judge (“IJ”) denying his applications for asylum and

* 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. Petitioner’s unopposed motion to submit, Dkt. 27, is granted. See Fed. R. App. P. 34(a)(2). withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252, and we

affirm.

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027‒28 (9th Cir.

2019) (citing Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). “We review

factual findings for substantial evidence and legal questions de novo.” Manzano v.

Garland, 104 F.4th 1202, 1206 (9th Cir. 2024) (quoting Flores Molina v. Garland,

37 F.4th 626, 632 (9th Cir. 2022)). “Under the substantial evidence standard,

factual findings are ‘conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.’” Id. (quoting Flores Molina, 37 F.4th at

632 (quoting 8 U.S.C. § 1252(b)(4)(B))).

Petitioner “bears the burden of proving eligibility for asylum and must

demonstrate that he has suffered past persecution or has a well-founded fear of

future persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” Duran-Rodriguez, 918 F.3d at 1028

(citing 8 U.S.C. § 1101(a)(42)). “Thus, Petitioner has the burden of establishing

that (1) [his] treatment rises to the level of persecution or that [he] has a well-

1 Petitioner has waived review of his Convention Against Torture claim by failing to argue it on appeal. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018).

2 founded fear of future persecution; (2) the persecution was or would be on account

of one or more protected grounds; and (3) the persecution was or would be

committed by the government, or by forces that the government was unable or

unwilling to control.” Rodriguez Tornes v. Garland, 993 F.3d 743, 750–51 (9th

Cir. 2021).

Here, substantial evidence supports the BIA’s determination that Petitioner

did not meet his “burden of proving that government officials were, or would be,

unable or unwilling to control his brother-in-law.” Petitioner bases his claims on a

series of threats and attacks by Petitioner’s “brother-in-law,” Savio Barbosa Braga

(“Savio”).2 However, Petitioner did not report any of these incidents to the police

because he believed the police would be ineffective and he feared retaliation from

Savio. In February 2016, Savio brought three of his friends to beat Petitioner.

Petitioner believed these friends were police officers because of their dress, but he

admitted that none of the men stated they were police officers. He also testified

that the Brazilian police had previously responded to Savio’s crimes: Savio was

arrested “many times” in 2014 for crimes such as car theft, which led to periods of

incarceration ranging from a few days to a week. Though a petitioner “need not

have reported that persecution to the authorities,” he must “convincingly establish

2 For consistency, we refer to Savio as Petitioner’s “brother-in-law” as the BIA and IJ did.

3 that doing so would have been futile or have subjected him to further abuse.”

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Even with the

submitted country conditions evidence, however, the record does not compel a

contrary finding, as required to overturn the BIA’s determination. See Manzano,

104 F.4th at 1206.

Without a showing of the government’s inability or unwillingness to control

persecution, Petitioner’s withholding claim necessarily fails as well. See Vitug v.

Holder, 723 F.3d 1056, 1064 (9th Cir. 2013); Reyes-Reyes v. Ashcroft, 384 F.3d

782, 788 (9th Cir. 2004).

PETITION DENIED.