Rosendo Ecomac-Chavez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2022
• Docket: 16-71346
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSENDO BASILIO ECOMAC-CHAVEZ, No. 16-71346

Petitioner, Agency No. A201-241-126

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

Respondent.

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

Submitted February 10, 2022** Portland, Oregon

Before: PAEZ and NGUYEN, Circuit Judges, and EATON,*** Judge.

Petitioner Rosendo Basilio Ecomac-Chavez, a citizen and national of

Guatemala, petitions for review of a decision by the Board of Immigration Appeals

* 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). *** Richard K. Eaton, Judge of the United States Court of International Trade. (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application for

withholding of removal and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition

for review.

1. Ecomac-Chavez challenges the BIA’s determination that he is not

entitled to withholding of removal. “To secure withholding of removal, a

petitioner must demonstrate that his ‘life . . . would be threatened in that country

because of [his] race, religion, nationality, membership in a particular social group,

or political opinion.’” Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (as

amended) (citing 8 U.S.C. § 1231(b)(3)(A)). The IJ and BIA found that Ecomac-

Chavez established past persecution based on the childhood abuse from his father

in Guatemala, which created a presumption that he would suffer future harm on the

same basis. 8 C.F.R. § 1208.16(b)(1)(i). But this presumption may be rebutted if,

in relevant part, the government shows by a preponderance of the evidence “a

fundamental change in circumstances such that the applicant’s life or freedom

would not be threatened” upon removal. Id. § 1208.16(b)(1)(i)(A). To show a

fundamental change in circumstances, the government must “introduce evidence

that, on an individualized basis, rebuts a particular applicant’s specific grounds for

his well-founded fear of future persecution.” Popova v. I.N.S., 273 F.3d 1251,

1259 (9th Cir. 2001) (internal citations and quotations omitted). This

2 “individualized analysis” must be “tailored to an asylum applicant’s particular

situation.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010).

The government showed fundamentally changed personal circumstances

here. Ecomac-Chavez is no longer a child, and according to his testimony, his

relationship with his father has changed such that he is not sure his father will

threaten or harm him again. The agency’s findings were supported by substantial

evidence. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014).1

2. Substantial evidence also supports the BIA and IJ’s findings that

Ecomac-Chavez is ineligible for CAT relief. “[T]orture is more severe than

persecution and the standard of proof for [a] CAT claim is higher than the standard

of proof for an asylum claim.” Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.

2005); see 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman or

degrading treatment or punishment that do not amount to torture.”). Because

1 Contrary to Ecomac-Chavez’s suggestion, the government need not show that Guatemala’s country conditions have changed as well. We have held that generalized country conditions alone may not be sufficient for the “individualized analysis” of the applicant’s situation when they are not germane to the persecution the applicant faces. Kamalyan, 620 F.3d at 1057-58. It does not follow that country conditions reports are required to show the applicant’s changed individual circumstances when the IJ has the applicant’s credible testimony to rely on instead. The country conditions reports here indicate that women and children are at higher risk of domestic violence in Guatemala, but they do not speak to Ecomac-Chavez’s individualized threat from his father as an adult male.

3 Ecomac-Chavez failed to show a likelihood of future persecution, he cannot meet

the higher threshold of showing future torture on the same facts. Nor would

Ecomac-Chavez’s claims rise to the level of past torture under the CAT. See, e.g.,

Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1079-80 (9th Cir. 2015); Ahmed v.

Keisler, 504 F.3d 1183, 1200-01 (9th Cir. 2007); Kumar v. Gonzales, 444 F.3d

1043, 1051-52, 1055-56 (9th Cir. 2006) (as amended); Nuru, 404 F.3d at 1218;

Mohammed v. Gonzales, 400 F.3d 785, 802 (9th Cir. 2005).

3. Finally, the BIA properly declined to remand for consideration of

humanitarian asylum relief. An applicant is not eligible for humanitarian asylum if

they are “barred from a grant of asylum” under one of the mandatory denials listed

in 8 C.F.R. § 1208.13(c), including the one-year time limit for filing an asylum

application after the date the applicant arrives in the United States. 8 C.F.R. §

1208.13(b)(1)(iii); see 8 U.S.C. § 1158(a)(2)(B). The IJ dismissed Ecomac-

Chavez’s application for asylum as untimely and Ecomac-Chavez did not appeal or

challenge this ruling before the BIA or try to do so here. See Barron v. Ashcroft,

358 F.3d 674, 677-78 (9th Cir. 2004) (stating that if a petitioner fails to raise an

issue before the BIA it cannot be raised on appeal).

As a result, the BIA correctly found Ecomac-Chavez ineligible for

humanitarian asylum based on his untimely asylum application.

PETITION DENIED.