Rodolfo Bello Miranda v. Merrick Garland

Opinion

FILED NOT FOR PUBLICATION MAY 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODOLFO BELLO MIRANDA, No. 19-72747

Petitioner, Agency No. A208-923-496

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

Respondent.

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

Submitted May 3, 2021** Seattle, Washington

Before: BOGGS,*** TASHIMA, and BERZON, Circuit Judges.

Rodolfo Bello Miranda, a native and citizen of Mexico, petitions for review

of a decision of the Board of Immigration Appeals (BIA or Board), dismissing his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. appeal of a decision of the Immigration Judge (IJ), who denied his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny

the petition.

1. The Board’s conclusion that the treatment Miranda suffered did not

rise to the level of persecution is not supported by substantial evidence. “Death

threats alone can constitute persecution, and ‘[v]iolence directed against . . . family

members provides support for a claim of persecution and in some instances is

sufficient to establish persecution.’” Kaur v. Wilkinson, 986 F.3d 1216, 1227 (9th

Cir. 2021) (quoting Baballah v. Ashcroft, 367 F.3d 1067, 1074–75 (9th Cir. 2004)

(citation omitted)). After Molina killed Miranda’s brother and Miranda filed a

complaint against Molina, Miranda was threatened with the death of one of his

children or relatives if he continued with the complaint. The following day,

Molina sent two men to Miranda’s mother-in-law’s store to tell Miranda that if

Molina ended up in jail, they would kill Miranda. Later that evening, two people

came to Miranda’s home and again threatened to kill him. These “repeated,”

“menacing death threats” are sufficient to establish persecution, particularly

because the death threats were “combined with confrontation.” Lim v. INS, 224

F.3d 929, 936 (9th Cir. 2000).

2 Nonetheless, as the IJ and BIA found, Miranda has not met his burden of

establishing that the government was “‘unable or unwilling to control’” the

persecutors. Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)

(quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)). Miranda

and his mother filed complaints against Molina with the district attorney, who

opened a criminal case and indicated that she was willing to continue with the case.

The evidence thus does not compel the conclusion that the BIA erred in finding

Miranda failed to establish eligibility for asylum. See Parada v. Sessions, 902 F.3d

901, 908-09 (9th Cir. 2018) (explaining that “we may only reverse the agency’s

determination where ‘the evidence compels a contrary conclusion from that

adopted by the BIA.’” (quoting Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir.

2010))).

2. We decline to address Miranda’s argument that the BIA erroneously

found he was not a member of two particular social groups because the BIA did

not address the issue. See Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016)

(“Our review is limited to those grounds explicitly relied upon by the Board.”).

Moreover, even if he can establish his membership in a particular social group, as

stated above, Miranda has failed to meet his burden of establishing that “‘the

persecution was committed by the government, or by forces that the government

3 was unable or unwilling to control.’” Villegas Sanchez, 990 F.3d at 1179 (quoting

Baghdasaryan, 592 F.3d at 1023).

3. Because Miranda has failed to establish eligibility for asylum, his

claims for withholding of removal and CAT relief also fail. Like asylum,

withholding of removal requires a showing of persecution “inflicted either by the

government or by persons or organizations which the government is unable or

unwilling to control.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1056 (9th Cir.

2006). Similarly, to qualify for protection under CAT, one must demonstrate that

public officials have acquiesced in one’s torture, which includes a showing that the

officials are “unable or unwilling to oppose it.” Rodriquez Tornes v. Garland, 993

F.3d 743, 754 (9th Cir. 2021) (quoting Garcia-Milian v. Holder, 755 F.3d 1026,

1034 (9th Cir. 2014)).

4. Assuming, without deciding, that the IJ erred in excluding some of

Miranda’s exhibits and testimony, we conclude that Miranda has failed to establish

the requisite substantial prejudice from the alleged due process violation. See

Hussain v. Rosen, 985 F.3d 634, 645 (9th Cir. 2021) (“‘To prevail on a due process

challenge to deportation proceedings, [the petitioner] must show [both] error and

substantial prejudice.’” (quoting Grigoryan v. Barr, 959 F.3d 1233, 1240 (9th Cir.

2020))). Miranda testified to the events supporting his application, and the IJ

4 found him to be credible. See Vargas-Hernandez v. Gonzales, 497 F.3d 919,

926–27 (9th Cir. 2007) (“Where an alien is given a full and fair opportunity to be

represented by counsel, to prepare an application for . . . relief, and to present

testimony and other evidence in support of the application, he or she has been

provided with due process.”). Miranda asserts that he could have provided further

details about the murder of his brother’s brother-in-law and the shooting in his

neighborhood, but he does not specify what those details are. See Hussain, 985

F.3d at 645 (finding no prejudice where the petitioner did not “point to any

additional evidence of persecution or the grounds upon which the BIA denied him

asylum”).

The petition for review is DENIED.