Ricardo Neyra-Moncada v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2023
• Docket: 18-72194
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICARDO NEYRA-MONCADA, No. 18-72194

Petitioner, Agency No. A206-915-823

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

Respondent.

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

Submitted February 28, 2023** San Francisco, California

Before: FRIEDLAND, BADE, and KOH, Circuit Judges.

Ricardo Neyra-Moncada, a native and citizen of Nicaragua, petitions for

review of an order of the Board of Immigration Appeals (“BIA”) upholding the

Immigration Judge’s (“IJ”) denial of his applications for asylum and withholding

* 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). of removal.1 We 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.” Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).

“We review for substantial evidence factual findings underlying the [agency’s]

determination that a petitioner is not eligible for asylum . . . [or] withholding of

removal . . . .” Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).

To prevail under this standard, “the petitioner must show that the evidence not only

supports, but compels the conclusion that these findings and decisions are

erroneous.” Id. (quotation marks omitted).

1. Substantial evidence supports the agency’s determination that Neyra-

Moncada is ineligible for asylum. He testified that he did not know what

motivated his cousin to rape him, and that his father never told him that he

disapproved of Neyra-Moncada’s sexual orientation. Although Neyra-Moncada

also testified that gang members sought to recruit him because of his sexual

orientation, he further explained that the gang members believed that because of

1 The agency also deemed Neyra-Moncada not credible with respect to his testimony regarding finding employment, and denied his petition for protection under the Convention Against Torture. Neyra-Moncada did not contest these issues in his opening brief, and therefore forfeited these issues, even under the liberal construction of claims required for pro se litigants. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013); Gonzalez-Castillo v. Garland, 47 F.4th 971, 980 (9th Cir. 2022).

2 this fact, the authorities would not view him as dangerous or a criminal. From this

testimony, the IJ concluded that the gang members were not centrally motivated by

Neyra-Moncada’s sexual orientation, but rather by the furtherance of their criminal

enterprise. The agency therefore permissibly determined that Neyra-Moncada did

not meet his burden of showing that his sexual orientation was “at least one central

reason” for his cousin’s abuse or gang members’ attempt to recruit him. 8 U.S.C.

§ 1158(b)(1)(B)(i). And although Neyra-Moncada did testify that he experienced

harassment and discrimination because of his sexual orientation, the record does

not compel the conclusion that this harm rose to the level of past persecution.

Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc) (“Persecution . . . does

not include mere discrimination, as offensive as it may be.”).

Because Neyra-Moncada did not demonstrate past persecution, he was not

entitled to a rebuttable presumption of a well-founded fear of future persecution.

See 8 C.F.R. § 1208.13(b)(1). Moreover, substantial evidence supports the

agency’s determination that he failed to establish an objective basis for a well-

founded fear of future persecution. Enough time had passed and enough

circumstances had changed to render Neyra-Moncada’s fear of harm at the hands

of his cousin or gang members speculative. See Nagoulko v. INS, 333 F.3d 1012,

1018 (9th Cir. 2003). And the record does not compel the conclusion that

discrimination toward LGBTQI individuals in Nicaragua, although pervasive,

3 qualifies as a pattern or practice of persecution. See Wakkary v. Holder, 558 F.3d

1049, 1060-62 (9th Cir. 2009). Finally, although Neyra-Moncada demonstrated

that the LGBTQI community in Nicaragua is a disfavored group, the agency

permissibly determined that he did not face a sufficient individualized risk to

establish a well-founded fear of future persecution. See id. at 1062-63.

2. Substantial evidence also supports the agency’s determination that Neyra-

Moncada is ineligible for withholding of removal. Given his testimony that he did

not know what motivated his cousin’s sexual abuse, the agency permissibly

determined that he did not meet his burden of showing that his sexual orientation

was “a reason” for that harm. Barajas-Romero v. Lynch, 846 F.3d 351, 359-60

(9th Cir. 2017). Although his sexual orientation was “a reason” motivating some

of the other harms he faced, the record does not compel the conclusion that these

harms rose to the level of persecution. Id.; see Fisher, 79 F.3d at 962. As with his

asylum claim, Neyra-Moncada’s fear of future persecution―at the hands of his

cousin, gang members, or others―is speculative; the record therefore also does not

compel the conclusion that he would face a clear probability of persecution if he

returns to Nicaragua. See Nagoulko, 333 F.3d at 1018; Tamang v. Holder, 598

F.3d 1083, 1091 (9th Cir. 2010).

PETITION DENIED.