Pedro Chicas-Navarrete v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2023
• Docket: 21-70827
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEDRO CHICAS-NAVARRETE, No. 21-70827

Petitioner, Agency No. A215-859-383

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted January 9, 2023** Pasadena, California

Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges.

Pedro Chicas-Navarrete, a native and citizen of El Salvador, petitions for

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

immigration judge’s (IJ) denial of his applications for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT). We have

* 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). jurisdiction under 8 U.S.C. § 1252 and deny the petition.

Because the BIA adopted and affirmed the IJ’s decision under Matter of

Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we review the IJ’s order as if it

were the BIA’s.” Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). We review

“denials of asylum, withholding of removal, and CAT relief for ‘substantial

evidence.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting

Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010)). “In order to reverse the

BIA, we must determine ‘that the evidence not only supports [a contrary]

conclusion, but compels it—and also compels the further conclusion’ that the

petitioner meets the requisite standard for obtaining relief.” Id. (alteration in

original) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).

1. The IJ found that Chicas-Navarrete was “statutorily barred from asylum”

because his asylum application arrived well after the one-year deadline and neither

extraordinary circumstances nor changed circumstances justified the late filing. See

8 U.S.C. § 1158(a)(2)(B), (D). In this court, Chicas-Navarrete argues that he

established a change of circumstances in El Salvador with country condition reports

showing that violence, trafficking, and corruption have “worsened” since his

departure in 2009.

Substantial evidence supports the IJ’s finding that Chicas-Navarrete failed to

show “changed circumstances that materially affect his eligibility for asylum.” The

2 cited country reports only suggest that drugs and corruption “remain[]” significant

problems for El Salvador, not that the situation has grown “exponentially worse” as

Chicas-Navarrete contends. Moreover, as the IJ noted, Chicas-Navarrete was

concerned about these problems even “prior to his departure from El Salvador.” At

most, Chicas-Navarrete’s cited evidence appears to be “[n]ew evidence confirming

what [he] already knew,” which “does not constitute changed circumstances.” See

Budiono v. Lynch, 837 F.3d 1042, 1047 (9th Cir. 2016).

2. The IJ also found, in the alternative, that the asylum claim failed because

Chicas-Navarrete did not “meet his burden to demonstrate past persecution or a well-

founded fear of future persecution on account of a protected ground.” See Sarkar v.

Garland, 39 F.4th 611, 622 (9th Cir. 2022).

Substantial evidence supports the IJ’s conclusion that Chicas-Navarrete had

not experienced past persecution on account of a protected ground. As the IJ noted,

Chicas-Navarrete “was threatened by gang members on two occasions in El

Salvador” but he “was never physically harmed.” “[T]hreats alone compel a finding

of past persecution” in only an “‘extreme’ case.” Villegas Sanchez v. Garland, 990

F.3d 1173, 1179 (9th Cir. 2021) (quoting Duran-Rodriguez v. Barr, 918 F.3d 1025,

1028 (9th Cir. 2019)). Though unfortunate, the small number of unfulfilled threats

is not “so overwhelming so as to necessarily constitute persecution.” See Prasad v.

INS, 47 F.3d 336, 339 (9th Cir. 1995). Moreover, Chicas-Navarrete points to no

3 compelling evidence that these threats were made “on account of” his nationality or

any other protected ground, as is required to establish “eligibility for asylum.” See

Wakkary v. Holder, 558 F.3d 1049, 1052 (9th Cir. 2009).

Substantial evidence also supports the IJ’s conclusion about the lack of a well-

founded fear of future persecution. Chicas-Navarrete’s fear of future persecution is

based on the threats made against him in the past. An asylum applicant who has

established “past persecution shall also be presumed to have a well-founded fear of

persecution.” 8 C.F.R. § 1208.13(b)(1). But since those incidents do not qualify as

past persecution, they do not establish an “objectively reasonable” fear of “future

persecution.” See Tamang v. Holder, 598 F.3d 1083, 1094–95 (9th Cir. 2010)

(holding that experiences of vague threats were insufficient to render a petitioner’s

fear of future persecution objectively reasonable).

Nor does Chicas-Navarrete provide evidence or argument that compels us to

conclude—contrary to the IJ’s findings—that he could not safely relocate within El

Salvador or that the Salvadoran government is unwilling or unable to protect him.

See 8 C.F.R. § 1208.13(b)(3)(i) (in the absence of past persecution, applicant must

show relocation would be unreasonable); Flores Molina v. Garland, 37 F.4th 626,

633 (9th Cir. 2022) (asylum applicant must show persecution committed by

government or by forces that government was unable or unwilling to control).

3. The IJ further concluded that Chicas-Navarrete was ineligible for

4 withholding of removal. Because Chicas-Navarrete did not meet the lower burden

of proof for asylum, it follows that he has not met the higher standard for withholding

of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

4. Finally, the IJ denied Chicas-Navarrete CAT protection. Though the

petition briefly states that the IJ erred in doing so, it offers no supporting argument

or authority and thus waives that claim. See Castro-Perez v. Gonzales, 409 F.3d

1069, 1072 (9th Cir. 2005). And even absent waiver, we discern no evidence in the

record compelling the conclusion that Chicas-Navarrete, in particular, is more likely

than not to be tortured in El Salvador. See Delgado-Ortiz v. Holder, 600 F.3d 1148,

1152 (9th Cir. 2010) (per curiam).

5. The temporary stay of removal remains in place until issuance of the

mandate. The motions for stay of removal (Dkt. Nos. 1, 5) are otherwise denied as

moot.

PETITION DENIED.