Carlos Chavez Lobaton v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS MANUEL CHAVEZ LOBATON, No. 15-73902
AKA Carlos Manuel Chavez-Lobatos,
Agency No. A088-882-773
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2022**
San Francisco, California
Before: HURWITZ and VANDYKE, Circuit Judges, and ERICKSEN,*** District
Judge.
Carlos Manuel Chavez Lobaton, a native and citizen of Peru, petitions for
review of a decision from the Board of Immigration Appeals (BIA) dismissing an
*
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 Joan N. Ericksen, United States District Judge for the District of
Minnesota, sitting by designation.
appeal from an order of an Immigration Judge (IJ) denying his application for
withholding of removal and protection under the Convention Against Torture
(CAT).1 We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for
review.
1. “We review denials of … withholding of removal[] and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Guo v. Sessions, 897
F.3d 1208, 1212 (9th Cir. 2018) (internal quotation marks and citation omitted). To
grant a petition for review under this standard, “we must find that the evidence not
only supports [a contrary] conclusion, but compels it.”2 INS v. Elias-Zacarias, 502
U.S. 478, 481 n.1 (1992).
2. Here, the record does not compel a conclusion contrary to the agency’s.
Chavez claims that he suffered persecution in 1999, when he was kidnapped twice
by criminals and beaten after he refused to provide information about the monetary
transactions and management at the hotel where he worked. Three years after the
1
We lack jurisdiction to consider any arguments raised in support of an asylum claim
because Chavez did not exhaust that claim before the agency. See Sola v. Holder,
720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). Additionally, Chavez’s petition
for review only seeks review of the agency’s denial of his withholding and CAT
claims.
2
“Where, as here, the BIA agrees with the IJ’s reasoning, we review both decisions.”
Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (citations
omitted).
2
kidnappings, Chavez left Peru and entered the United States under a visa that he
overstayed without authorization.
a. Regarding his withholding of removal claim, Chavez bore the burden of
showing that, if removed to Peru, he would more likely than not suffer persecution
on account of a protected ground. See 8 U.S.C. § 1231(b)(3); Chen v. Ashcroft, 362
F.3d 611, 617 (9th Cir. 2004). Chavez contends that he was persecuted in Peru due
to his political opinion as a person who “refus[ed] to accede to criminal activity and
extortionist demands,” and because of his membership in social groups of “Peruvian
men beaten and kidnapped by criminal organizations who lack police protection”
and “hotel employees who refuse to provide hotel information to criminal groups.”3
But the record supports the agency’s finding that Chavez’s kidnappers were
motivated by pecuniary gain and not any political opinion or any social identity
Chavez may have held. Accordingly, he has failed to establish the requisite nexus
between the harm he suffered and a protected ground.4 See, e.g., Zetino v. Holder,
3
We lack jurisdiction to consider Chavez’s argument that he was harmed on account
of his “perceived wealth.” See Sola, 720 F.3d at 1135.
4
Although the BIA and the IJ applied the “one central reason” test which has now
been supplanted for withholding of removal claims, see Barajas-Romero v. Lynch,
846 F.3d 351, 360 (9th Cir. 2017) (holding that the less demanding “a reason”
standard applies to withholding of removal claims), we see no reason to remand the
case for further consideration. Where, as here, the “the IJ and Board clearly found
there was no nexus between the [conduct underlying the petitioner’s claim] and a
protected ground,” and where “substantial evidence supports this finding …
3
622 F.3d 1007, 1015 (9th Cir. 2010) (“An alien’s desire to be free from harassment
by criminals motivated by theft or random violence … bears no nexus to a protected
ground.”); Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of
a nexus to a protected ground is dispositive of [petitioner’s] asylum and withholding
of removal claims.”) (citing Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir.
2009)). We therefore need not consider whether Chavez’s proposed social groups
are cognizable.
b. Regarding his CAT claim, Chavez bore the burden of proving “that ‘it is
more likely than not that … [he] would be tortured if removed to the proposed
country of removal.’” Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004) (first
alteration in original) (quoting 8 C.F.R. § 208.16(c)(2)). The agency denied his CAT
claim because the passage of time since his past harm minimized the risk of any
future torture, and the evidence did not show that he would face any risk of torture
outside his hometown or that the government would consent or acquiesce in any
future torture. The two kidnappings that occurred more than twenty years ago and
Chavez’s fear that his hometown has “a lot of crime” do not compel the conclusion
that, upon his return, Chavez would more likely than not experience torture “inflicted
remanding in light of Barajas-Romero would be an ‘idle and useless formality’ as
the outcome would be the same under either standard.” Macias-Padilla v. Sessions,
729 F. App’x 541, 543 (9th Cir. 2018) (quoting NLRB v. Wyman-Gordon Co., 394
U.S. 759, 766 n.6 (1969)).
4
by, or at the instigation of, or with the consent or acquiescence of, a public official
… or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1); see
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam).
PETITION DENIED.
5