Vasquez Muy v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 2025
• Docket: 24-6110
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AGUSTO VASQUEZ MUY, No. 24-6110 Agency No. Petitioner, A208-939-624 v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted August 20, 2025** Portland, Oregon

Before: CALLAHAN, M. SMITH, and MENDOZA, Circuit Judges.

Agusto Vasquez Muy, a native and citizen of Guatemala, petitions for

review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his

appeal of an Immigration Judge’s (“IJ”) decision denying his applications for

withholding of removal and protection under the Convention Against Torture

* 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). (“CAT”).1

We review legal conclusions de novo and factual findings for substantial

evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). “We

‘review [an] IJ’s determination that [an] alien did not establish a reasonable fear of

persecution or torture for substantial evidence,’ which means that ‘we must uphold

the IJ’s conclusion . . . unless, based on the evidence, any reasonable adjudicator

would be compelled to conclude to the contrary.’” Orozco-Lopez v. Garland, 11

F.4th 764, 774 (9th Cir. 2021) (alterations in original) (quoting Bartolome v.

Sessions, 904 F.3d 803, 811 (9th Cir. 2018)). We have jurisdiction under 8 U.S.C.

§ 1252(a)(1), and we deny the petition.

I. Substantial evidence supports the agency’s denial of Vasquez Muy’s

petition for withholding of removal. To be eligible for withholding of removal, a

Petitioner must show that his “life or freedom would be threatened in [the country

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

social group, or political opinion.” 8 U.S.C § 1231 (b)(3)(A). An applicant must

show either that he has suffered past persecution, or that evidence in the record

demonstrates a clear probability of future persecution. Viridiana v. Holder, 646

F.3d 1230, 1239 (9th Cir. 2011). “To establish eligibility for withholding of

1 Vasquez Muy in his appeal to the BIA did not challenge the IJ’s denial of his asylum application as time barred because he applied after the one year-deadline. Thus, his asylum claim is unexhausted and forfeited.

2 24-6110 removal in the absence of past persecution, an applicant must demonstrate both

that he has a subjective fear of persecution in the future, and that this fear is

objectively reasonable—which, in the withholding context, means that the chance

of future persecution is ‘more likely than not.’” Wakkary v. Holder, 558 F.3d 1049,

1060 (9th Cir. 2009) (quoting 8 C.F.R. § 208.16(b)(2)). We have held that

“[p]ersecution . . . is an extreme concept that means something considerably more

than discrimination or harassment.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th

Cir. 2021) (quoting Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)).

When a noncitizen is a member of a disfavored group, we consider the risk

level of membership in the group along with the individualized “threat of

persecution.” Lapadat v. Bondi, No. 23-1745, 2025 WL 2176149, at *11 (9th Cir.

July 31, 2025) (quoting Mgoian v. INS, 184 F.3d 1029, 1035 n.4 (9th Cir. 1999)).

The more serious and widespread the risk of persecution to the group, the less

individualized the threat of persecution needs to be. Id. However, disfavored group

membership “is not sufficient by itself to meet [a petitioner’s] ultimate burden of

proof; ‘some evidence of individualized risk is necessary for the petitioner to

succeed.’” Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010) (quoting

Wakkary, 558 F.3d at 1065).

Vasquez Muy argues he has a clear probability of persecution based on his

indigenous Mayan ethnicity. He claims that his past experiences with anti-

3 24-6110 indigenous discrimination, although not persecutory, demonstrate that he faces a

risk of future persecution because they show that he is identifiable as indigenous.

Vasquez Muy argues that being identifiable as indigenous, coupled with the

economic and political deprivation of indigenous Guatemalans, creates a “more

likely than not” risk he will be persecuted.

Although the agency assumed Vasquez Muy demonstrated he is a member

of a disfavored group on account of his indigenous Mayan ethnicity, he has not

shown an individualized risk of persecution. Vasquez Muy cites two instances of

discrimination. Once, when he was 14 years old, someone threw away the peanuts

he was selling and told him he did not belong because he was “Indian.” On

another occasion, someone threw away his shoe shine kit and told him to “go back

to where you were from.” These two events are insufficient to show an

individualized risk of persecution.

II. Substantial evidence supports the agency’s denial of CAT protection. An

applicant for CAT relief has the burden to “establish that it is more likely than not

that [he] would be tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(2).

Vasquez Muy produced evidence of “considerable crime in many parts of

Guatemala” and of gang related acts of torture. In addition, the IJ acknowledged

that “[g]overnment officials may be corrupt” and that “[s]ome of them engage in

4 24-6110 acts of torture.” But CAT relief is “based entirely on an objective basis of fear,”

and Vasquez Muy has not demonstrated an objectively reasonable fear of future

torture. Sharma, 9 F.4th at 1067 (quoting Tamang v. Holder, 598 F.3d 1083, 1095

(9th Cir. 2010)). The agency could reasonably determine that Vasquez Muy’s

assertions about the discrimination and poverty indigenous Guatemalans face did

not make it more likely than not that he would be tortured under CAT’s definition.

See Nuru v. Gonzalez, 404 F.3d 1207, 1224 (9th Cir. 2005) (torture under CAT is

“more severe than persecution”). Moreover, Vasquez Muy produced no evidence

that he himself has suffered past torture or that he is likely to be tortured by the

Guatemalan government or by others acting with the acquiescence of the

government.

The petition for review is DENIED.

5 24-6110