Tomas Solorzano v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 21-70505
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TOMAS ALBERTO SOLORZANO, No. 21-70505

Petitioner, Agency No. A205-713-198

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

Respondent.

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

Submitted March 7, 2022** Pasadena, California

Before: IKUTA, LEE, and FORREST, Circuit Judges.

Tomas Solorzano is a native and citizen of El Salvador. He seeks review of

the Board of Immigration Appeals’ (BIA) decision affirming the Immigration

Judge’s denial of asylum, withholding of removal, and Convention Against Torture

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

* 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). petition.

We review the BIA’s determination that a petitioner is ineligible for asylum,

withholding of removal, and CAT protection for substantial evidence. Konou v.

Holder, 750 F.3d 1120, 1124 (9th Cir. 2014); Tampubolon v. Holder, 610 F.3d 1056,

1059 (9th Cir. 2010). Under this standard, the BIA’s findings will be reversed only

if “the evidence in the record compels a reasonable factfinder to conclude that the

BIA’s decision is incorrect.” Tampubolon, 610 F.3d at 1059 (cleaned up).

Substantial evidence supports the BIA’s determination that Solorzano is

ineligible for asylum and withholding of removal. To be eligible for asylum or

withholding of removal, a petitioner must demonstrate that he has or will be

persecuted based on “race, religion, nationality, membership in a particular social

group, or political opinion.” Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020)

(quoting 8 U.S.C. §§ 1101(a)(42) and 1231(b)(3)(A)). Solorzano claims that he is a

member of a cognizable particular social group (PSG) consisting of “family, as

defined by kinship ties, or family members who have faced extortion or attempted

extortion.” And he argues that he is likely to be persecuted on account of his familial

ties because his partner and her sister had previously been extorted via threatening

letters sent by criminal gangs in El Salvador.

But the BIA concluded that these past instances of extortion were indicative

of “general conditions of crime and violence” because nothing in the record

2 demonstrated that the extortion was “motivated by anything other than the desire for

financial gain.” Solorzano cannot point to any evidence that requires us to disturb

the BIA’s finding. The extortion letters demanded money but did not express animus

towards the family. The fact that some of Solorzano’s family members have been

extorted does not mean that the extortion was motivated by familial ties. See Matter

of L-E-A-, 27 I. & N. Dec. 40, 45 (BIA 2017). Moreover, none of Solorzano’s

siblings living in El Salvador have ever been harmed by gangs, undercutting his

claim that his family is being targeted.

Substantial evidence also supports the BIA’s conclusion that Solorzano is

ineligible for CAT protection. To qualify for CAT relief, a petitioner must establish

that “it is more likely than not” that he would be tortured by or “with the consent or

acquiescence of a public official.” Cole v. Holder, 659 F.3d 762, 770–71 (9th Cir.

2011) (quoting 8 C.F.R. §§ 208.16(c)(2) and 1208.18(a)(1)). The BIA denied relief

based on the “absence of past torture, the speculative nature of [Solorzano’s] fears,

and the evidence cited by the Immigration Judge concerning government efforts to

combat crime and official corruption.”

There is no reason to disturb the BIA’s finding. “Past torture is the first factor

we consider in evaluating the likelihood of future torture.” Nuru v. Gonzales, 404

F.3d 1207, 1217 (9th Cir. 2005). Because persecution is less severe than torture, the

absence of past persecution necessarily encompasses an absence of past torture. See

3 id. at 1224. Solorzano concedes that he has never suffered past persecution, so there

is no reason to believe he would be tortured upon his return to El Salvador. And the

country report submitted by Solorzano details the Salvadoran government’s recent

efforts to combat police corruption, undercutting his claim that he would be tortured

at the hands of the government. See Kamalyan v. Holder, 620 F.3d 1054, 1058 (9th

Cir. 2010) (changed country conditions may rebut fear of future persecution).

DENIED.