Orlando Escobar v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
NOV 3 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORLANDO ESCOBAR, No. 18-73040
Petitioner, Agency No. A201-238-202
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 30, 2020**
Portland, Oregon
Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.
Petitioner Orlando Escobar, a native and citizen of Guatemala, seeks review
of the Board of Immigration Appeals’ (“BIA”) final order affirming the
immigration judge’s (“IJ”) denial of his request for asylum, humanitarian asylum,
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. The IJ had jurisdiction. See Aguilar Fermin v. Barr, 958 F.3d 887, 895
(9th Cir. 2020) (holding that there was no error in the BIA’s determination that
the lack of time, date, and place in the Notice to Appear sent to the petitioner did
not deprive the immigration court of jurisdiction).
2. Substantial evidence supports the BIA’s conclusion that Petitioner is
not eligible for asylum or withholding of removal. The BIA engaged in an
individualized analysis of the government’s willingness and ability to confront
Petitioner’s father, finding that the father’s arrest amounts to a fundamental change
in circumstances rebutting Petitioner’s specific ground for his fear of future
persecution. Lopez v. Ashcroft, 366 F.3d 799, 804–05 (9th Cir. 2004). We are not
compelled to hold to the contrary. See Leon-Hernandez v. INS, 926 F.2d 902, 904
(9th Cir. 1991) (“The possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding from being supported
by substantial evidence.” (internal quotation marks omitted)).
Alternatively, substantial evidence supports the BIA’s conclusion that
Petitioner could relocate to another part of Guatemala and that doing so would be
safe and reasonable. The BIA reasonably held that Petitioner’s age, physical
condition, fluency in Spanish, work experience, and familial financial support
2
meant he could relocate. Contrary to Petitioner’s argument, the BIA adequately
considered the relevant factors set out in 8 C.F.R. § 1208.13(b)(3). We are not
compelled to hold otherwise.
3. Substantial evidence supports the BIA’s conclusion that the government
would not acquiesce in any torture. The government’s arrest of Petitioner’s father
supports the conclusion that it is willing and able to address criminal activity. See
Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (per curiam)
(quoting with approval a BIA statement that a government does not “‘acquiesce’ to
torture where [it] actively, albeit not entirely successfully, combats the illegal
activities” (internal quotation marks omitted)).
4. Contrary to the government’s suggestion, Petitioner exhausted his
humanitarian asylum claim. The BIA acknowledged and decided this issue,
concurring with the IJ’s determination that Petitioner is ineligible for humanitarian
asylum. The BIA did not abuse its discretion on this issue. See Belayneh v. INS,
213 F.3d 488, 491 (9th Cir. 2000) (“When the BIA finds past persecution but no
well-founded fear of future persecution, we review its denial of humanitarian
asylum for an abuse of discretion.”).
PETITION DENIED.
3