Serrano-Portillo v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR FRANCESCOLY SERRANO- No. 22-879
PORTILLO, Agency No. A216-610-839
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2023 **
Honolulu, Hawaii
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
Edgar Francescoly Serrano-Portillo (Serrano-Portillo), a native and
citizen of Honduras, petitions 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
*
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).
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. When, as
here, the BIA adopts and affirms the IJ’s decision citing Matter of Burbano, 20
I. & N. Dec. 872 (B.I.A. 1994), and also provides its own review of the
evidence and law, we review both the BIA’s decision and the IJ’s decision. See
Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020). Reviewing the
agency’s factual findings for substantial evidence and its legal conclusions de
novo, see Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir. 2022), we deny
the petition for review.
1. Because Serrano-Portillo failed to exhaust his challenge to the
denial of CAT protection, we deny this portion of the petition. See Santos-
Zacaria v. Garland, 143 S. Ct. 1103, 1114 (2023); Umana-Escobar v. Garland,
––– F.4th –––, 2023 WL 3606117, at *5 (9th Cir. May 23, 2023).
2. Substantial evidence supports the agency’s denial of asylum and
withholding of removal because Serrano-Portillo failed to establish past
persecution or a well-founded fear of future persecution. Agencia Técnica de
Investigación Criminal (ATIC) agents alerted Serrano-Portillo that the agency
had received information that a criminal group was plotting to kill him. The
agents advised him to obtain a weapon to protect himself. Even if the agents’
warning can be construed as a threat to Serrano-Portillo’s life from government
officials, there is no other evidence supporting a finding of past persecution.
Serrano-Portillo was not otherwise harmed, threatened, or confronted with
violence following the warning. As the threat itself was not so imminent or “so
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menacing as to cause significant actual suffering or harm,” the threat alone does
not compel a finding of past persecution. Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028–29 (9th Cir. 2019) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir.
2000)).
Next, substantial evidence supports the agency’s determination that
Serrano-Portillo’s fear of future persecution was not objectively reasonable.
Serrano-Portillo conceded he was not aware of ATIC agents removing
journalists from their homes, nor could he identify other journalists persecuted
by the Honduran government. And while a 2018 Honduras Human Rights
Report describes harassment and threats against journalists, these few reported
incidents were not attributed to the government. The report further describes
ATIC’s role in investigating human rights violations by the Honduran national
police and the military police, which are turned over to the Public Ministry for
prosecution. While Serrano-Portillo may genuinely fear that the Honduran
police or other government actors would target him for his political reporting,
the record does not establish that his fear is objectively reasonable. See Ahmed
v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).
PETITION DENIED.
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