ZENON GARCIA LUIS V. MERRICK GARLAND ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZENON GARCIA LUIS, No. 15-72504
Petitioner, Agency No. A201-236-516
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,*** 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 Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
Petitioner Zenon Garcia Luis, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals (“BIA”) order dismissing his
appeal from an Immigration Judge’s (“IJ”) decision denying his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We review legal questions de novo,
and the agency’s factual findings for substantial evidence. Singh v. Garland, 48
F.4th 1059, 1066 (9th Cir. 2022). We deny the petition.
The record supports the agency’s conclusion that petitioner established
neither past persecution nor a likelihood of future persecution.1 Petitioner argues
that the limited economic opportunities available to him and other indigenous
Mayans in Guatemala constitute persecution. While “substantial economic
deprivation that constitutes a threat to life or freedom can constitute persecution,”
Zehatye v. Gonzales, 453 F.3d 1182, 1186 (9th Cir. 2006), “mere economic
disadvantage alone does not rise to the level of persecution,” Gormley v. Ashcroft,
364 F.3d 1172, 1178 (9th Cir. 2004). Petitioner describes being forced to leave
school at a young age to work, his family’s experience traveling long distances for
employment only to be cheated out of their full wages, and a general lack of
1
Because we would find a lack of past persecution even under de novo review, we
need not decide whether we apply de novo or substantial evidence review to the
BIA’s determination that Petitioners failed to establish past persecution. See Singh,
48 F.4th at 1066–67 (noting an intra-circuit split on the appropriate standard of
review that applies to whether particular facts rise to the level of past persecution).
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investment in his community.2 This falls short of what this Court has required to
show persecution on the basis of economic deprivation. See, e.g., Baballah v.
Ashcroft, 367 F.3d 1067, 1075 (9th Cir. 2004) (finding persecution where applicant
was individually targeted, harassed, and attacked by Israeli Marines who “made it
virtually impossible for [petitioner] to earn a living”). Petitioner’s claim is further
undermined by evidence that the majority of his family continues to live and work
in his hometown without incident. See Gormley, 364 F.3d at 1178–79.3
Substantial evidence supports the agency’s denial of CAT relief as Garcia
Luis failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to Guatemala. None of
2
To the extent petitioner relies on the attack on his father to demonstrate past
persecution, that evidence does not change the outcome here. While “harm to a
petitioner’s close relatives, friends, or associates may contribute to a successful
showing of past persecution,” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir.
2009), “this violence [must] create a pattern of persecution closely tied to the
petitioner,” Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991).
“Allegations of isolated violence are not enough.” Id. Furthermore, there is no
evidence that the attack was motivated by petitioner’s father’s work with the local
indigenous group.
3
While not raised by petitioner, the Court notes that because the IJ and BIA’s
orders predated Barajas-Romero v. Lynch, the incorrect “one central reason”
standard was used to analyze nexus, rather than the less demanding “a reason”
standard. However, the withholding conclusion is unaffected by the changed
standard as the agency found Garcia Luis “did not suffer persecution in
Guatemala.” Thus, remand is unnecessary. See Singh v. Barr, 935 F.3d 822, 827
(9th Cir. 2019) (no remand required, despite asserted Barajas-Romero error, where
“neither the result nor the BIA’s basic reasoning would change” under the correct
standard, and therefore any error was harmless).
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petitioner’s claimed sources of torture – economic discrimination against
indigenous communities nor potential torture by gang members or government
forces – are sufficient to meet his burden here. Nuru v. Gonzales, 404 F.3d 1207,
1224 (9th Cir. 2005) (explaining that torture is necessarily “more severe” than
persecution); Wakkary, 558 F.3d at 1067–68 (explaining that even where torture
occurs in the relevant country, applicant must show an individualized risk of
torture). We reject as unsupported by the record petitioner’s claims that the agency
adopted an overly strict definition of torture and that both the agency and IJ failed
to give due weight to the country conditions information provided by petitioner.
Finally, Garcia Luis’s request for remand or termination of proceedings
[Dkt. # 21] is denied. See Karingithi v. Whitaker, 913 F.3d 1158, 1160–62 (9th Cir.
2019) (rejecting contention that lack of hearing information in notice to appear
deprived immigration court of jurisdiction and instructing petitioner wishing to
present a cancellation of removal application to reopen proceedings with the BIA).
PETITION DENIED.
4