Silva Franco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2024
• Docket: 23-4014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JHONATAS AMORIM SILVA No. 23-4014 FRANCO; GISLAINE FRANCO Agency Nos. VALADARES AMORIM; BENHOUR A220-251-770 FRANCO VALADARES A220-251-771 AMORIM; ARTHUR FRANCO A220-251-772 VALADARES AMORIM, A220-251-773 Petitioners, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 7, 2024** Las Vegas, Nevada

Before: BEA, CHRISTEN, and BENNETT, Circuit Judges.

Petitioners Jhonatas Amorim Silva Franco and Gislaine Franco Valadares

* 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). Amorim, and their two minor children, who are all natives and citizens of Brazil,

petition for review of the Board of Immigration Appeals’ (BIA) order dismissing

their appeal from the Immigration Judge’s (IJ) decision denying asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT).1 Because the parties are familiar with the facts, we do not recount them

here. We have jurisdiction pursuant to 8 U.S.C. § 1252. Because the BIA issued

its own decision, our review is limited to that decision “except where the IJ’s

opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831

(9th Cir. 2022). Reviewing legal conclusions de novo and factual findings for

substantial evidence, id., we deny the petition.

1. To establish entitlement to asylum and withholding, “a petitioner must

prove a causal nexus between one of her statutorily protected characteristics and

either her past harm or her objectively tenable fear of future harm.” Rodriguez-

Zuniga v. Garland, 69 F.4th 1012, 1016 (9th Cir. 2023). “A persecutor that is

exclusively motivated by something unrelated to a victim’s protected characteristic

is, tautologically, not motivated by the victim’s protected characteristic.” Id. at

1025.

Here, substantial evidence supports the BIA’s conclusion that Jhonatas was

1 Jhonatas is the lead petitioner; his spouse and children seek asylum as derivative beneficiaries, 8 U.S.C. § 1158(b)(3).

2 23-4014 targeted only for financial reasons, and not because of any protected characteristic.

See id. at 1019-20. The record shows that Silvio’s actions toward Jhonatas were

motivated solely by his desire to be repaid. Silvio began his threats after Jhonatas

informed Silvio that he could not repay his debts. Moreover, Jhonatas expressly

confirmed that “the only reason that [he] had any problem with [Silvio]” was

because he “hadn’t repaid him,” and acknowledged that he did not “know of any

other reason why Silvio threatened to harm [him] other than [his] failure to repay

the loan.”

2. To the extent Jhonatas seeks humanitarian asylum, such relief is only

available where an alien has established that he is a refugee on the basis of past

persecution. 8 C.F.R. § 1208.13(b)(1)(iii); Najmabadi v. Holder, 597 F.3d 983,

992 n.2 (9th Cir. 2010); Matter of L-S-, 25 I. & N. Dec. 705, 710 (BIA 2012).

Because Jhonatas has not established past persecution on account of a protected

characteristic, the BIA properly concluded that he is ineligible for humanitarian

asylum.

3. To establish eligibility for CAT relief, an applicant must show “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. § 1208.16(c)(2). Substantial evidence supports the BIA’s

conclusion that Jhonatas would not likely suffer torture in Brazil. Jhonatas

conceded that he and his family had never been physically harmed in Brazil and

3 23-4014 Jhonatas identifies no evidence that compels the conclusion that he would likely be

tortured.

PETITION DENIED.

4 23-4014