Castaneda Flores v. Garland ( 2023 )

Case: 21-517, 02/22/2023, DktEntry: 49.1, Page 1 of 4
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Edgardo Armando Castaneda Flores, No. 21-517
Petitioner, Agency No. A094-393-563
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges.
Edgardo Armando Castaneda Flores (“Castaneda Flores”), a native and
citizen of El Salvador, petitions for review of an immigration judge’s (“IJ”)
determination that he did not establish a reasonable fear of persecution or
torture in El Salvador and therefore is not entitled to relief from his reinstated
removal order. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
*
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).
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petition.1
We review for substantial evidence an IJ’s negative reasonable fear
determination, upholding “unless, based on the evidence, any reasonable
adjudicator would be compelled to conclude to the contrary.” Bartolome v.
Sessions, 904 F.3d 803, 811 (9th Cir. 2018) (citations and internal quotation
marks omitted).
1. Substantial evidence supports the IJ’s determination that Castaneda
Flores failed to establish a reasonable fear of persecution as a “father of an
autistic child in El Salvador.” Castaneda Flores stated that his daughters would
remain in the United States with their mother if he were removed, and nothing
in the record suggests that he would experience persecution as a father of an
autistic daughter who lives in the United States. Castaneda Flores also
expressed fear over how the Mara Salvatrucha (“MS-13”) gang would treat him
if they knew his other daughter had arthritis, but nothing in the record suggests
that the MS-13 gang would know about his daughters’ diagnoses if they
remained in the United States. Because “[s]peculation on what could occur is
1
After briefing in this case was complete, the government notified us of a recent
Second Circuit decision, Bhaktibhai-Patel v. Garland, 32 F.4th 180, 189-93,
196-97 (2d Cir. 2022), which held, contrary to Ortiz-Alfaro v. Holder, 694 F.3d
955, 958 (9th Cir. 2012), that decisions made during withholding-only
proceedings are not final orders of removal subject to judicial review. We need
not resolve our statutory jurisdiction over such decisions. Instead, we assume
statutory jurisdiction and deny the petition on the merits. See De La Rosa-
Rodriguez v. Garland, 49 F.4th 1282, 1291 (9th Cir. 2022).
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not enough to establish a reasonable fear,” Bartolome, 904 F.3d at 814,
substantial evidence supports the IJ’s determination.
We find no merit to Castaneda Flores’s argument that the IJ failed to
consider all documentary evidence. The IJ reviewed the documents he received
from Castaneda Flores’s counsel, permitted counsel to submit sixty additional
pages of documents, and referenced specific information from the documents
during the hearing. Reasonable fear determinations need not address “all of the
evidence and claims specifically.” Id. at 814. There is “no basis to assume that
the IJ failed to consider the evidence” in this record, including the country
conditions articles. Id.
2. Substantial evidence supports the IJ’s finding that Castaneda Flores
failed to establish “a reasonable possibility that he would be tortured in the
country of El Salvador” by the MS-13 gang. There is no evidence that
Castaneda Flores experienced any past harm, let alone torture, from the MS-13
gang. See Edu v. Holder, 624 F.3d 1137, 1145 (9th Cir. 2010) (“[T]he existence
of past torture is ordinarily the principal factor on which [this Court] rel[ies].”
(internal quotation marks omitted)). Castaneda Flores expressed only
generalized fears about crime and violence in El Salvador, which is insufficient
to meet the standard for relief under the Convention Against Torture. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam);
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016). Because
Castaneda Flores “fail[ed] to show a ‘reasonable possibility’ of future torture,”
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any argument regarding “government acquiescence is irrelevant, as there is no
torture for the government to give in to.” Rivera Vega v. Garland, 39 F.4th
1146, 1158 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.31(c)); see Orozco-Lopez
v. Garland, 11 F.4th 764, 780 (9th Cir. 2021).
The motion for a stay of removal (Docket Entry No. 2) is denied. The
temporary stay of removal is lifted.
PETITION DENIED.
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