Romael Lopez Zacarias v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROMAEL LOPEZ ZACARIAS, No. 16-70473
Petitioner, Agency No. A088-890-770
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**
San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District
Judge.
*
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).
***
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
Romael Lopez Zacarias petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”)
denial of his application for withholding of removal and relief under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We deny the petition.
Where, as here, the BIA cites its decision in Matter of Burbano, 20 I. & N.
Dec. 872 (BIA 1994), “and does not express disagreement with any part of the IJ’s
decision, the BIA adopts the IJ’s decision in its entirety” and so we review “the IJ’s
decision as if it were that of the BIA.” Abebe v. Gonzales, 432 F.3d 1037,
1039–40 (9th Cir. 2005) (en banc) (quoting Hoque v. Ashcroft, 367 F.3d 1190,
1194 (9th Cir. 2004)). We review the denial of “withholding of removal and CAT
claims for substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028
(9th Cir. 2019) (citations omitted)).
I
Substantial evidence supports the IJ’s denial of withholding of removal.
Lopez Zacarias challenges the IJ’s findings on only two out of three incidents that
form the factual grounds for his application.
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A
Substantial evidence supports the IJ’s finding of no past persecution based
on the incident involving Lopez Zacarias’s ex-girlfriend’s brother, Francisco
Rodas.
Substantial evidence supports the IJ’s adverse credibility determination. The
IJ noted that Lopez Zacarias’s testimony at the hearing which attributed
Francisco’s attack to a personal vendetta was inconsistent with his testimony about
the incident as declared to a Guatemalan justice of the peace. The IJ provided
Lopez Zacarias with an opportunity to explain this inconsistency, and reasonably
rejected as unbelievable his claim that the police left out certain details that he
reported to them. See Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004) (IJ was
required to give applicant opportunity to explain inconsistency in order to base
adverse credibility on that ground).
The IJ also reasonably noted that Lopez Zacarias entirely failed to mention
Francisco Rodas’s assault during his reasonable fear interview. Because that
interview contains indicia of reliability, Singh v. Gonzales, 403 F.3d 1081,
1089–90 (9th Cir. 2005), and the omission was material, Iman v. Barr, 972 F.3d
1058, 1067–68 (9th Cir. 2020), substantial evidence supports this ground.
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Substantial evidence also supports the IJ’s conclusion that intimate partners
of Glendy Rodas does not constitute a particular social group. Lopez Zacarias does
not contest the IJ’s conclusion that a social group so specific that it is comprised of
only one person is not a group. Lopez Zacarias’s argument that Francisco Rodas
perceives men who date his sister as a group fails because a “particular social
group is determined by the perception of the society in question, rather than by the
perception of the persecutor.” Rios v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015)
(citation and quotation marks omitted). Lopez Zacarias’s arguments to the
contrary are unpersuasive.
Finally, substantial evidence also supports the IJ’s conclusion that Francisco
Rodas’s assault did not rise to the level of persecution. The IJ dismissed Lopez
Zacarias’s testimony that the assault lasted 15 or 16 minutes as incredible, and
instead found the report to the Justice of the Peace to be the most credible account
of the facts. In that account, Lopez Zacarias claimed that Francisco Rodas punched
him a few times. Absent more, a few punches does not constitute persecution. See
Aden v. Wilkinson, 989 F.3d 1073, 1082 (9th Cir. 2021) (quoting Ghaly v. INS, 58
F.3d 1425, 1431 (9th Cir. 1995)).
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Lopez Zacarias fails to meaningfully challenge the IJ’s other findings with
regard to this incident, and we agree that Lopez Zacarias failed to establish he
cannot reasonably relocate to avoid future harm from Francisco Rodas. Substantial
evidence supports the IJ’s denial of withholding on these facts.
B
Substantial evidence also supports the IJ’s conclusion that Lopez Zacarias
did not meet his burden to show he cannot reasonably relocate to avoid the uncles
of his cousin’s wife. Lopez Zacarias successfully avoided the uncles for two years
before fleeing to the U.S., suggesting that there are places in Guatemala where he
is safe from them. The IJ’s denial of Lopez Zacarias’s claim for withholding of
removal based on his fear of the uncles on this ground is supported by substantial
evidence. Because this finding is dispositive, we need not address Lopez
Zacarias’s other challenges.
II
The IJ did not fail to analyze Francisco Rodas’s assault when it denied
Lopez Zacarias’s CAT claim. The IJ listed that incident when it discussed the
factual grounds for his CAT claim, indicating that the IJ considered that evidence.
See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020) (en banc). The
IJ’s failure to specifically discuss that evidence—which is not dispositive
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here—does not invalidate the IJ’s analysis. See Cole v. Holder, 659 F.3d 762, 771
(9th Cir. 2011) (holding that where it is clear that the BIA considered evidence, the
BIA need not discuss all nondispositive evidence).
Finally, Lopez Zacarias’s claim that the IJ erred in finding no government
acquiescence in his torture because the evidence reveals the Guatemalan police are
“extremely ineffective,” lacks merit. The record does not compel the conclusion
that any possible torture Lopez Zacarias may face will be at the hands of, or with
the acquiescence of, the Guatemalan government, and he is therefore unable to
establish his claim under CAT. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034
(9th Cir. 2014). Lopez Zacarias’s citation to the Guatemalan country conditions
report does not bolster his claim of government acquiescence where the record
reveals that the Guatemalan police attempted to bring his assailants to justice.
Substantial evidence supports the denial of this claim.
PETITION DENIED.
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