Estrada Garcia v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIAS ESTRADA GARCIA, No. 21-1439
Agency No.
Petitioner, A205-321-342
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 17, 2023**
Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.
Elias Estrada Garcia, a native and citizen of Guatemala, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his applications for asylum and
withholding of removal. We review the BIA’s “legal conclusions de novo and
its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions,
*
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).
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
Substantial evidence supports the BIA’s determination that the threats
gang members made against Estrada Garcia because of the pro-government
political opinion and Mormon faith they imputed to him did not rise to the level
of persecution required to be granted asylum or withholding of removal.
“Persecution is an extreme concept that does not include every sort of treatment
our society regards as offensive.” Villegas Sanchez v. Garland, 990 F.3d 1173,
1179 (9th Cir. 2021) (citation omitted). Although understandably frightening,
the unfulfilled threats—unaccompanied by physical harm—were not “so
overwhelming so as to necessarily constitute persecution.” See id. (citation
omitted); see also Gomes v. Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005)
(holding that weekly harassment by gang members on the way to religious
services did not “rise to the level of persecution”).
Substantial evidence also supports the BIA’s determination that Estrada
Garcia failed to show that a statutorily protected ground is “one central reason”
motivating his stepson, a gang member, to threaten him. See Kaur v. Garland,
2 F.4th 823, 834–35 (9th Cir. 2021) (holding that the persecutor’s motive is
“crucial” to a determination of whether a petitioner is entitled to asylum).
Additionally, the BIA did not err by concluding that the threats and harm
Estrada Garcia’s stepson inflicted on his family while Estrada Garcia lived in
the United States does not constitute persecution to Estrada Garcia. See
2 21-1439
Tamang v. Holder, 598 F.3d 1083, 1092 (9th Cir. 2010) (explaining that “we
have not found that harm to others may substitute for harm to an applicant . . .
who was not in the country at the time he claims to have suffered past
persecution there”).
We do not address the IJ’s determination that no changed circumstances
excused Estrada Garcia’s untimely asylum application. The BIA did not rely on
the untimeliness determination to dismiss Estrada Garcia’s appeal and we
“cannot affirm the BIA on a ground upon which it did not rely.” See Arrey v.
Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (citation omitted).
PETITION DENIED.
3 21-1439