Rodriguez Hernandez v. Garland

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT NOV 14 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARIO ALBERTO RODRIGUEZ No. 23-2501 HERNANDEZ; MARIA INES MEDRANO LLANOS; JONATHAN Agency Nos. ALBERTO RODRIGUEZ A201-426-750 MEDRANO; MARIA ELISA A201-426-751 RODRIGUEZ MEDRANO, A201-426-752 A201-426-753 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 8, 2024** Pasadena, California

Before: W. FLETCHER, CALLAHAN, and DE ALBA, Circuit Judges.

* 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). Petitioners Mario Alberto Rodriguez Hernandez (“Rodriguez Hernandez”),

his wife Maria Ines Medrano Llanos (“Medrano Llanos”), and their minor children

J.A. Rodriguez Medrano and M.E. Rodriguez Medrano, citizens of Mexico,

petition for review of a decision by the Board of Immigration Appeals (“BIA”)

dismissing their appeal from the Immigration Judge’s (“IJ”) denial of Rodriguez

Hernandez’s application for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). Medrano Llanos and their minor

children are derivative beneficiaries of Rodriguez Hernandez’s asylum application.

We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

We review denials of asylum, withholding of removal, and CAT relief for

substantial evidence and any legal conclusions de novo. 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)).

First, substantial evidence supports the BIA’s conclusion that Petitioners did

not establish past persecution for asylum purposes. “Unfulfilled threats are very

rarely sufficient to rise to the level of persecution . . . .” Hussain v. Rosen, 985 F.3d

634, 647 (9th Cir. 2021). A single death threat made indirectly to Rodriguez

2 Hernandez does not compel the conclusion of past persecution in this case. See

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028–29 (9th Cir. 2019) (“On these

facts, although it may have been possible for the IJ to conclude that the threats . . .

[rose] to the level of persecution, we cannot say the evidence compels the

conclusion” that they did). Nor does the allegation that gang members mocked

Rodriguez Hernandez on the way to church compel a conclusion of past

persecution. Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (holding

substantial evidence supported the finding of no past persecution where petitioner

was “teased, bothered, discriminated against and harassed” on account of their

religion).

Second, the evidence also supports the finding that Rodriguez Hernandez’s

fears of future persecution were not well-founded. He could not explain why gang

members would still want to harm him after he sold his motorcycle, the primary

reason why they targeted him. Because Petitioners did not show persecution for

asylum purposes, Rodriguez Hernandez “necessarily fails to satisfy the more

demanding standard for withholding of removal, which involves showing by a

‘clear probability’ that the petitioner’s life or freedom would be threatened in the

proposed country of removal.” Davila, 968 F.3d at 1142; see also 8 U.S.C.

§ 1231(b)(3)(A).

3 Third, substantial evidence supports the conclusion that gang members did

not target Rodriguez Hernandez because of a protected ground. Petitioners

asserted harm because of their membership in the particular social groups (“PSG”)

of (1) “Christian[s]”; (2) “small farm worker[s]”; (3) “immediate family” for

Medrano Llanos and their children; and (4) “individuals who refuse to participate

in gang activities because of their religious beliefs and their family members.” But

Rodriguez Hernandez’s declaration and testimony support the conclusion that gang

members threatened him because he had a motorcycle. While Rodriguez

Hernandez also testified about his belief that gang members recruited him because

of his religion, his testimony on this point is unclear and inconsistent. The BIA

considered this evidence but nevertheless concluded that it was insufficient to

establish that his religion was “one central reason” for the asserted persecution. 8

U.S.C. § 1158(b)(1)(B)(i) (requiring a protected ground to be “at least one central

reason for persecuting the applicant”). The evidence before us does not compel the

opposite conclusion. Nor does the evidence compel a conclusion that Rodriguez

Hernandez was targeted because of his membership in any of the other claimed

PSGs.

We also deny the petition as to Rodriguez Hernandez’s CAT claim. Torture

under CAT is “more severe than persecution,” Guo v. Sessions, 897 F.3d 1208,

4 1217 (9th Cir. 2018) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.

2005)), and the evidence supports a finding of no persecution. Rodriguez

Hernandez also did not establish that the government would consent or acquiesce

to the harm. 8 C.F.R. § 1208.18(a)(1). “[G]eneral ineffectiveness on the

government’s part to investigate and prevent crime” by itself is insufficient “to

show acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION DENIED.