Reynaldo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2023
• Docket: 21-697
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 21 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL AMAYA-REYNALDO, No. 21-697

Petitioner, Agency No. A206-909-961

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

Respondent.

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

Submitted March 17, 2023** Pasadena, California

Before: PAEZ, MILLER, and VANDYKE, Circuit Judges.

Petitioner seeks review of a Board of Immigration Appeals (BIA) decision

dismissing the appeal of the denial by the Immigration Judge (IJ) of deferral 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 under the Convention Against Torture (CAT). We have jurisdiction under

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

Petitioner is a native and citizen of El Salvador who entered the United States

without authorization in 2005 and has resided here ever since. In 2015, Petitioner

applied for asylum and withholding, stating that he feared “extortion by the MS-13,”

that gangs target repatriates from the United States, and that he would be “a good

candidate to be extorted.” His amended application added that he feared he would

be persecuted and tortured by Salvadoran security forces “known to commit

extrajudicial killings” and organized criminals, that the government there was

unwilling to protect him, and that statistics and reports by human rights groups

supported his fear of torture by corrupt Salvadoran officials.

At his 2018 immigration hearing, Petitioner further testified that he had once

been beaten as a youth by gang members for refusing to smoke marijuana with them,

but he had otherwise only experienced thefts, and he had never received a beating

requiring medical treatment. He recounted several events when family members had

been extorted or harmed: his brother and mother had been extorted, his uncle had

been “run over by a car” of gangsters, and two siblings had been beaten by gangsters.

The IJ first held that because Petitioner didn’t contest that he had been

convicted of a “particularly serious crime,” he was ineligible for asylum or

2 withholding of removal. 1 Thus, the only eligible relief was deferral of removal under

the CAT (“CAT Deferral”).

The IJ denied CAT Deferral relief. The IJ reasoned that even if Petitioner was

credible, he failed to show “it [was] more likely than not that [he] would be tortured

as defined in the regulations much less by or at the instigation of or with the consent

or acquiescence of a government official or other person acting in an official

capacity.” Harms suffered when Petitioner was a child—any beatings and thefts—

and speculation that gang members may single him out for extortion as a repatriate

did not rise to the level of torture, nor did the incidents suffered by his family (the

hit-and-run killing of his uncle, extortion of his mother, and beatings suffered by

siblings). To support his otherwise “generalized distrust of government authorities,”

Petitioner had provided anecdotal and documentary evidence regarding corruption,

but the IJ found he had failed to show it was more likely than not he would suffer

gang-related torture at the instigation, acquiescence, or consent of a government

official. The IJ noted that Petitioner’s own documentary evidence reported the

Salvadoran government’s “attempts to combat the influence and extent of the gang

1 Petitioner was charged and convicted for possession of methamphetamine. Petitioner did not appeal the holding that he was thus ineligible for asylum or withholding of removal.

3 violence.” The BIA dismissed Petitioner’s appeal, which challenged the IJ’s adverse

credibility determination and denial of CAT Deferral relief.

Where, as here, the BIA issues its own decision, but “relies in part on the

immigration judge’s reasoning, we review both decisions.” Budiono v. Lynch, 837

F.3d 1042, 1046 (9th Cir. 2016) (citation omitted). Questions of law are reviewed

de novo, Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011), but the agency’s

factual findings are reviewed for substantial evidence and are “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.

§ 1252(b)(4)(B). Thus, to reverse a finding of the agency under substantial evidence

review, “we must find that the evidence not only supports” reversal, “but compels

it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). To qualify for CAT

Deferral, an applicant bears the burden of showing “it is more likely than not that he

or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§§ 208.16(c)(2), 208.17. Even assuming that Petitioner testified credibly, his

arguments to that end are unpersuasive.

First, he argues that the BIA treated the resolution of past torture as dispositive

of the question of whether his fear of future torture was probable. But the BIA never

determined that the absence of past torture foreclosed any claimed fear of future

torture. On the contrary, the BIA clearly did address Petitioner’s alleged fear of

future torture: “[E]ven though gang members may have harmed members of his

4 family, he has presented a speculative claim that now, after residing in this country

for more than a decade, it is more likely than not that he will be tortured upon his

removal.” Specifically, “even though corruption exists in some parts of El Salvador,

[Petitioner] has not shown a clear probability that any future torture would be

inflicted.” Nor does Petitioner challenge the IJ’s thorough analysis, which the BIA

cited and relied on.

Second, Petitioner argues that the BIA erred in dismissing his appeal as

speculative, because all claims of future torture are by nature speculative. But the

BIA’s use of the term “speculative” is not problematic: the agency and this court use

that term, not in the general sense that all claims about the future are uncertain, but

in the specific sense that the claim is not individualized or particularized in a manner

that would aid in analyzing the probability of future torture. See, e.g., Xiao Fei

Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir. 2011). It is in that latter sense that

the agency concluded Petitioner’s evidence of future torture, when taken together,

“does not show … that it is more likely than not that he would be tortured … were

he now to return.” Contrary to Petitioner’s argument, the BIA applied the correct

standard of proof.

Third, Petitioner argues that the BIA erred in dismissing his appeal for failure

to establish that torture would be inflicted “with the requisite degree of state action,”

because it did not consider the state’s “inaction, or ‘willful blindness.’” The BIA

5 did, however, explicitly consider this factor: “[Petitioner] has not established … it is

more likely than not he will be tortured by or at the instigation of or with the consent

or acquiescence (including ‘willful blindness’) of a public official.” Given this clear

ruling, Petitioner’s argument fails.

PETITION DENIED.