Pablo Antonio v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 9, 2024
• Docket: 23-236
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BAUDILIO ESTEBAN PABLO No. 23-236 ANTONIO, Agency No. A213-079-185 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 7, 2024** Pasadena, California

Before: WARDLAW, FRIEDLAND, and SUNG, Circuit Judges.

Baudilio Esteban Pablo Antonio, a native and citizen of Guatemala, petitions

for review of a decision by the Board of Immigration Appeals (“BIA”) affirming

the immigration judge’s (“IJ”) denial of his application for asylum, withholding of

* 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). removal, and protection under the Convention Against Torture. Because the BIA

affirmed the IJ’s decision after conducting its own review of the evidence, we

review the BIA’s decision and any portion of the IJ’s opinion that the BIA

expressly adopted. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).1 We

have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Substantial evidence supports the agency’s denial of Pablo Antonio’s

asylum application as untimely. And, in any event, he does not make any argument

to address the dispositive issue of timeliness in his opening brief, that issue is

forfeited. Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022).

2. Substantial evidence supports the agency’s denial of withholding of

removal. To qualify for withholding, an applicant must demonstrate past

persecution or a well-founded fear of future persecution on account of a protected

ground. 8 C.F.R. § 1208.13(b). When determining whether Pablo Antonio

demonstrated past persecution, the BIA considered and applied the standards set

forth in Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021). The BIA did not

fail to consider material factors, as Pablo Antonio asserts. Even considering the

facts that Pablo Antonio contends the BIA ignored, including the timing and nature

of the threats he experienced and the country conditions, those facts do not compel

the conclusion that the harms Pablo Antonio suffered rise to the level of

1 We refer to the BIA and IJ collectively as the “agency.”

2 persecution. Persecution is “an extreme concept that does not include every sort of

treatment our society regards as offensive.” Rusak v. Holder, 734 F.3d 894, 896

(9th Cir. 2013) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)).

Although it is troubling that Pablo Antonio was threatened, robbed, and beaten by

gang members, he did not provide specific testimony or other evidence showing

that these incidents were so menacing that they constitute past persecution. See

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (quoting Lim v.

INS, 224 F.3d 929, 936 (9th Cir. 2000)).

Substantial evidence also supports the BIA’s determination that Pablo

Antonio failed to establish that he has a well-founded fear of future persecution.

Pablo Antonio contends that he established a well-founded fear of persecution on

account of three different bases. We address each basis in turn.

The BIA determined that Pablo Antonio’s reliance on country condition

reports to establish that he would be targeted on account of his indigenous ethnicity

was unavailing because those reports showed ongoing discrimination against

indigenous communities in Guatemala but not persecution. Pablo Antonio asserts

that the BIA erred in assessing those reports, but he does not develop that

argument; consequently, it is forfeited. Pablo Antonio also argues that the BIA

erred in determining that he did not establish a threat of persecution on the basis of

his ethnicity because it disregarded the statements of his father and a local leader

3 of the Kanjobal tribe. Because those statements discuss only generalized crime in

Guatemala, the BIA was not required to specifically address them in this context.

See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (A “petitioner cannot simply

prove that there exists a generalized or random possibility of persecution” to

establish a well-founded fear of future persecution (internal quotation marks

omitted)).

Substantial evidence also supports the BIA’s dispositive finding that, even

assuming that Pablo Antonio’s proposed social group of “indigenous tribal

members who have been targeted by cartels because of their tribal membership” is

cognizable, the record does not establish that the cartel members did or would

likely target him on account of his membership in that group. Although Pablo

Antonio asserts that this proposed social group is cognizable, he does not address

the BIA’s alternative finding, and therefore, this issue is forfeited.

The BIA also properly concluded that the proposed social group of

“returnees from the United States who are perceived as wealthy” is not cognizable.

See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (“[W]e hold

that the proposed group of ‘imputed wealthy Americans’ is not a discrete class of

persons recognized by society as a particular social group.”).

3. Substantial evidence supports the BIA’s determination that the record

does not establish that Pablo Antonio is more likely than not to be tortured by

4 cartels upon return to Guatemala. Although the country conditions reports that

Pablo Antonio cites demonstrate that Guatemala is plagued by corruption and

violence, these reports do “not indicate that [Pablo Antonio] would face any

particular threat of torture beyond that of which all citizens of [Guatemala] are at

risk.” Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008). Pablo Antonio

has therefore failed to meet his burden of proving eligibility for protection under

CAT.

4. Pablo Antonio asks us to remand this matter to the BIA because his notice

to appear was allegedly defective under 8 U.S.C.§ 1229(a)(1)(G)(i). Pablo Antonio

argues that the BIA erred by not remanding his case to the IJ to apply Matter of

Fernandes, 28 I. & N. Dec. 605 (B.I.A. 2022). However, Matter of Fernandes

requires a remedy only for petitioners who “made a timely objection to [a]

noncompliant notice to appear,” and such an objection is timely only “if it is raised

prior to the closing of pleadings before the Immigration Judge.” Id. at 610–11.

Pablo Antonio made no objection until after the closing of pleadings before the IJ.

Accordingly, he is not entitled to remand under Matter of Fernandes.

PETITION DENIED.