Guevara-Diaz 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NOT FOR PUBLICATION FILED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
AMILCAR GUEVARA-DIAZ, No. 22-435
Agency No.
Petitioner, A206-898-785
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.
Amilcar Guevara-Diaz, a native and citizen of El Salvador, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C. § 1252. We review the agency’s factual findings
*
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).
for substantial evidence and its legal conclusions de novo. Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Where, as here, the BIA
affirms the IJ’s reasoning and also adds its own comments, we review both
decisions. Gonzalez Castillo v. Garland, 47 F.4th 971, 976 (9th Cir. 2022). We
deny the petition for review.
To establish eligibility for asylum, “a petitioner has the burden to
demonstrate a likelihood of ‘persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021)
(quoting 8 U.S.C. § 1101(a)(42)(A)). A petitioner may demonstrate past
persecution by showing that “(1) he has endured serious harm such that his
treatment rises to the level of persecution; (2) the persecution was committed by
the government, or by forces that the government was unable or unwilling to
control; and (3) the persecution was on account of one or more protected grounds,
such as a political opinion.” Singh v. Garland, 57 F.4th 643, 652 (9th Cir. 2022)
(internal quotation marks and citations omitted). “Persecution is ‘an extreme
concept that does not include every sort of treatment our society regards as
offensive.’” Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (citation
omitted).
Substantial evidence supports the BIA’s conclusion that Guevara-Diaz did
2 22-435
not demonstrate past persecution.1 Guevara-Diaz credibly testified before the IJ
that he fled El Salvador following four frightening encounters with a rival
political party on account of his work for the Grand Alliance for National Unity
during a local election in 2015. These encounters included threats of death and
beatings, one of which inflicted bruises requiring pain medication. Guevara-
Diaz’s experiences, while troubling, do not compel the conclusion that he endured
serious harm amounting to persecution. See Singh, 57 F.4th at 653–57 (reviewing
analogous cases and concluding that a petitioner suffered past persecution where
political opponents followed and physically beat petitioner and his brother over a
period of years). Although “we do not require severe injuries to meet the serious-
harm prong of the past-persecution analysis,” id. at 654, we have “repeatedly
denied petitions for review when, among other factors, the record did not
demonstrate significant physical harm,” Sharma, 9 F.4th at 1061.
Absent a finding of past persecution, Guevara-Diaz is not entitled to a
presumption of future persecution. See Sharma, 9 F.4th at 1060; 8 C.F.R.
§ 1208.13(b)(1). Even excusing Guevara-Diaz’s forfeiture of a challenge to the
IJ’s adverse internal relocation finding, see Santos-Zacaria v. Garland, 143 S. Ct.
1103, 1112 (2023) (holding that 8 U.S.C. § 1252(d)(1)’s exhaustion requirement
is a claim-processing rule, not a jurisdictional bar), substantial evidence supports
1
Although “the standard of review for past persecution is currently
unsettled,” Antonio v. Garland, 58 F.4th 1067, 1072 n.8 (9th Cir. 2023), the
agency’s fact-bound analysis here calls for a deferential substantial evidence
review, see Flores-Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022).
3 22-435
the BIA’s conclusion that Guevara-Diaz did not demonstrate a well-founded fear
of future persecution. The record does not show that the political opponents who
antagonized Guevara-Diaz during the 2015 election have a “continuing interest”
in him today. See Sharma, 9 F.4th at 1065. Although Guevara-Diaz’s father
attested that members of the rival party asked after Guevara-Diaz following his
departure, the father’s statement does not specify the extent or severity of these
inquiries. Ultimately, without additional evidence about the current political
climate and enduring threats to Guevara-Diaz, his concerns are “too speculative
to be credited as a basis for fear of future persecution.” Silva v. Garland, 993
F.3d 705, 718 (9th Cir. 2021) (quoting Nagoulko v. INS, 333 F.3d 1012, 1018
(9th Cir. 2003)).
Consequently, we deny Guevara-Diaz’s petition with respect to his asylum
and withholding of removal claims. See Davila v. Barr, 968 F.3d 1136, 1142 (9th
Cir. 2020) (“An applicant who fails to satisfy the lower standard for asylum
necessarily fails to satisfy the more demanding standard for withholding of
removal.”).
Substantial evidence also supports the BIA’s denial of Guevara-Diaz’s
CAT claim. To establish eligibility for CAT protection, a petitioner must show
“that it is more likely than not that he will be tortured upon removal, and that the
torture will be inflicted at the instigation of, or with the consent or acquiescence
of, the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).
“Torture” is “an extreme form of cruel and inhuman treatment and does not
4 22-435
include lesser forms of cruel, inhuman or degrading treatment or punishment.” 8
C.F.R. § 1208.18(a)(2). Accordingly, “[d]emonstrating torture requires a much
greater showing of harm than demonstrating persecution.” Hernandez v.
Garland, 52 F.4th 757, 769 (9th Cir. 2022). Although Guevara-Diaz faced
significant adversity as a result of his political views, he has not proffered
evidence that the incidents he endured amounted to torture or are “more likely
than not” to reoccur. Thus, substantial evidence supports the BIA’s denial of
Guevara-Diaz’s CAT claim.
PETITION DENIED.
5 22-435