Recinos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2024
• Docket: 23-81
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Mario A. Recinos No. 23-81 Petitioner, Agency No. A094-461-190 v.

MERRICK B. GARLAND, Attorney General, MEMORANDUM*

Respondent.

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

Submitted on February 14, 2024** Pasadena, California

Before: TALLMAN, CALLAHAN, Circuit Judges, and LASNIK,*** District Judge. Mario Recinos, a native and citizen of El Salvador, seeks review of the Board

of Immigration Appeals’ decision to dismiss his appeal from the Immigration

* 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).

*** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Judge’s order denying his application for withholding of removal and relief under

Article III of the United Nations Convention Against Torture (“CAT”). On appeal,

Recinos argues that he is entitled to relief based on a single incident in 1998 where

the Mara Salvatrucha (“M.S.”) gang tried to recruit him, and when he refused,

members of the gang “beat” his friend—whose name Recinos cannot remember—

to “send him a message.” Recinos offers no additional incidents of harm, and

otherwise argues that prevalent gang violence in El Salvador entitles him to relief.

Because we write primarily for the parties who are familiar with the facts, we do not

recount them here. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

We review the Board’s determination that a petitioner failed to establish

eligibility for withholding of removal or protection under the CAT for substantial

evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1066–67 (9th Cir. 2021).

Under that standard, “we uphold the agency’s determinations unless, based on the

evidence, ‘any reasonable adjudicator would be compelled to conclude to the

contrary.’” Hermosillo v. Garland, 80 F.4th 1127, 1131 (9th Cir. 2023) (quoting

Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)).

The 1998 incident cannot support a finding of past or future persecution for

several reasons. First, isolated incidents that do not cause “significant physical

harm” to the petitioner, as is the case here, will often fail to rise to the level of

2 persecution. See e.g., Sharma, 9 F.4th at 1061–62 (collecting cases). Second, even

if we were to consider the harm to Recinos’s friend as evidence of persecution, he

fails to establish that the harm was part of “a pattern of persecution closely tied to”

him. Sharma, 9 F.4th at 1062 (quoting Wakkary v. Holder, 558 F.3d 1049, 1060

(9th Cir. 2009)). Third, to the extent Recinos claims the threats by the M.S. gang

entitles him to relief, “threats, without more, do not necessarily compel a finding of

past persecution.” Id. at 1062 (quoting Villegas Sanchez v. Garland, 990 F.3d

1173, 1179 (9th Cir. 2021)). Fourth, Recinos admits he has never been physically

harmed or approached by anyone from the M.S. gang since 1998, even though he

lived in El Salvador for two years after the incident. Thus, any fear of returning to

El Salvador is unreasonable and fails to establish a “clear probability” of future

persecution. Sharma, 9 F.4th at 1066. Substantial evidence supports the Board’s

decision to deny Recinos’s application for withholding of removal.

Recinos alleges that widespread government corruption and high crime rates

qualify him for protection under CAT. We disagree. To qualify for protection

under the CAT, an applicant “must show that it is ‘more likely than not’ that a

government official or person acting in an official capacity would torture him or

aid or acquiesce in his torture by others.” Wakkary, 558 F.3d at 1067–68 (quoting

Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001)). Our case law is clear on

two points: first, absent a showing that the petitioner has “reason to think that he is

3 likely to be tortured by the actors he fears,” general allegations of torture occurring

in the country of deportation are insufficient for relief, Wakkary, 558 F.3d at 1068;

second, a government’s failed efforts to control gang-related crime do not

constitute acquiescence as required by the CAT. Andrade-Garcia v. Lynch, 828

F.3d 829, 836 (9th Cir. 2016). Recinos’s allegations do not qualify him for

protection, and based on the scant evidence on the record, we are not compelled to

reach a different conclusion than the Board’s.

PETITION DENIED.