Orlando Escobar v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2020
• Docket: 18-73040
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORLANDO ESCOBAR, No. 18-73040

Petitioner, Agency No. A201-238-202

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted October 30, 2020** Portland, Oregon

Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.

Petitioner Orlando Escobar, a native and citizen of Guatemala, seeks review

of the Board of Immigration Appeals’ (“BIA”) final order affirming the

immigration judge’s (“IJ”) denial of his request for asylum, humanitarian asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”).

1. The IJ had jurisdiction. See Aguilar Fermin v. Barr, 958 F.3d 887, 895

(9th Cir. 2020) (holding that there was no error in the BIA’s determination that

the lack of time, date, and place in the Notice to Appear sent to the petitioner did

not deprive the immigration court of jurisdiction).

2. Substantial evidence supports the BIA’s conclusion that Petitioner is

not eligible for asylum or withholding of removal. The BIA engaged in an

individualized analysis of the government’s willingness and ability to confront

Petitioner’s father, finding that the father’s arrest amounts to a fundamental change

in circumstances rebutting Petitioner’s specific ground for his fear of future

persecution. Lopez v. Ashcroft, 366 F.3d 799, 804–05 (9th Cir. 2004). We are not

compelled to hold to the contrary. See Leon-Hernandez v. INS, 926 F.2d 902, 904

(9th Cir. 1991) (“The possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding from being supported

by substantial evidence.” (internal quotation marks omitted)).

Alternatively, substantial evidence supports the BIA’s conclusion that

Petitioner could relocate to another part of Guatemala and that doing so would be

safe and reasonable. The BIA reasonably held that Petitioner’s age, physical

condition, fluency in Spanish, work experience, and familial financial support

2 meant he could relocate. Contrary to Petitioner’s argument, the BIA adequately

considered the relevant factors set out in 8 C.F.R. § 1208.13(b)(3). We are not

compelled to hold otherwise.

3. Substantial evidence supports the BIA’s conclusion that the government

would not acquiesce in any torture. The government’s arrest of Petitioner’s father

supports the conclusion that it is willing and able to address criminal activity. See

Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (per curiam)

(quoting with approval a BIA statement that a government does not “‘acquiesce’ to

torture where [it] actively, albeit not entirely successfully, combats the illegal

activities” (internal quotation marks omitted)).

4. Contrary to the government’s suggestion, Petitioner exhausted his

humanitarian asylum claim. The BIA acknowledged and decided this issue,

concurring with the IJ’s determination that Petitioner is ineligible for humanitarian

asylum. The BIA did not abuse its discretion on this issue. See Belayneh v. INS,

213 F.3d 488, 491 (9th Cir. 2000) (“When the BIA finds past persecution but no

well-founded fear of future persecution, we review its denial of humanitarian

asylum for an abuse of discretion.”).

PETITION DENIED.