Regalado Hernandez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2024
• Docket: 22-1756
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 22 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE REGALADO HERNANDEZ, No. 22-1756

Plaintiff-Appellee, Agency No. A206-683-872

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

Defendant-Appellant.

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

Submitted February 14, 2024** Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

Petitioner Jose Regalado Hernandez petitions for review of a decision by the

Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration

Judge’s (IJ) denial of his claims for asylum, withholding of removal, 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. See Fed. R. App. P. 34(a)(2). protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition.

Where, as here, the BIA summarily adopts the IJ’s decision without an

opinion, we “review the IJ’s decision as if it were the BIA’s decision.” Zheng v.

Ashcroft, 397 F.3d 1139, 1143 (9th Cir. 2005). We review legal conclusions de

novo and factual findings for substantial evidence. Plancarte Sauceda v. Garland,

23 F.4th 824, 831 (9th Cir. 2022). “To prevail under the substantial evidence

standard, the petitioner ‘must show that the evidence not only supports, but

compels the conclusion that these findings and decisions are erroneous.’” Id.

(quoting Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020)).

Substantial evidence supports the agency’s finding that Regalado Hernandez

did not establish persecution that would make him eligible for asylum or

withholding of removal. Unfulfilled threats, without more, generally do not

amount to persecution. Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000). Regalado

Hernandez was not physically harmed in El Salvador, and there is no evidence the

gangs carried out their threats against other supporters of the FMLN party. The

country reports do not describe politically motivated violence or election

interference by gangs in El Salvador. The other mistreatment Regalado Hernandez

suffered does not compel a finding of persecution.

2 Further, Regalado Hernandez did not report the threats to the Salvadoran

police, and the agency found he did not establish that such a report would have

been futile or dangerous. There is some evidence the police would not have helped

Regalado Hernandez. He testified that gang members were joining the police

academy and that he witnessed gang members bribe a police officer. But he also

testified that a sergeant told him it was becoming harder to meet the requirements

of the police academy, suggesting that the police were making efforts to weed out

gang members. His testimony that gang members were attending the police

academy at some point before 2002 does not compel a finding that gang members

continued to infiltrate the police in 2013 and 2014. The country conditions report

recounts that the Salvadoran government is attempting to curb gang violence, and

does not recount that the police have been corrupted by gangs. In light of the

above, we cannot say the record as a whole “compels the conclusion” that the

agency’s finding was erroneous. Plancarte Sauceda, 23 F.4th at 831 (internal

quotation omitted).

We deny the petition as to Regalado Hernandez’s CAT claim for similar

reasons. Torture is “more severe than persecution,” Guo v. Sessions, 897 F.3d

1208, 1217 (9th Cir. 2018), and Regalado Hernandez did not show the threats

amounted to persecution. The generalized evidence of corruption and violence in

3 El Salvador, is not specific enough to show government acquiescence. See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).

PETITION DENIED.