James Castillo Barrios v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES WUANERGI CASTILLO No. 18-71731
BARRIOS; MARIA DEL ROSARIO
BARRIOS FUENTES, Agency Nos. A208-201-696
A208-201-695
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Petitioners James Wuanergi Castillo Barrios (“Barrios”) and Maria del
Rosario Barrios Fuentes (“Barrios Fuentes”), natives and citizens of Guatemala,
seek review of the Board of Immigration Appeals’ (“BIA”) order denying their
*
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).
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252.
Reviewing for substantial evidence, Guo v. Sessions, 897 F.3d 1208, 1212 (9th Cir.
2018), we deny the petition.
1. Substantial evidence supports the BIA’s denial of Barrios’s asylum
claim. 1 To be eligible for asylum, Barrios must show that he is “unable or
unwilling to return to” his home country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1).
To establish persecution “on account of” a protected ground, a petitioner must
“produce evidence from which it is reasonable to believe that the harm was
motivated, at least in part, by an actual or implied protected ground.”
Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir. 2009) (citation omitted).
Barrios has failed to meet this burden here. He asserts that he faces persecution
based on his “immediate familial relationship.” Membership in a family group can
sometimes constitute a protected ground. Rios v. Lynch, 807 F.3d 1123, 1128 (9th
Cir. 2015). But even once membership in a particular social group is established,
an applicant must show that “persecution was or will be on account of his
1
As the BIA noted, Petitioner Barrios Fuentes applied only for withholding of
removal and CAT relief.
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membership in such group.” Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir.
2011). Here, Barrios offers no evidence that he was or will be persecuted based on
his membership in a family group.
2. Because Barrios has not met his burden of proof for asylum, substantial
evidence also supports the BIA’s denial of withholding of removal under its “more
stringent standard.” Cordoba v. Barr, 962 F.3d 479, 483 (9th Cir. 2020); see also
Sarkar v. Garland, 39 F.4th 611, 622 (9th Cir. 2022) (“[A]n applicant who is
unable to show a reasonable possibility of future persecution necessarily fails to
satisfy the more stringent standard . . . for withholding of removal.” (simplified)).
And because Barrios Fuentes seeks withholding of removal based on the same
facts, her claim also fails.
3. Substantial evidence also supports the BIA’s denial of CAT relief. “To
establish entitlement to protection under CAT, a petitioner must show ‘it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.’” Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022)
(quoting 8 C.F.R. § 1208.16(c)(2)). The torture must be “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public official.” 8 C.F.R. §
1208.18(a)(1). Nothing in the record shows that public officials would instigate,
consent to, or acquiesce in the violence that Petitioners fear they will face at the
hands of gang members. Petitioners suggest that the police made no effort to stop
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the gang threats, because the threats continued after Petitioners’ reports to the
authorities. But mere speculation about governmental acquiescence, without more,
does not warrant CAT relief. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th
Cir. 2021) (“[S]peculative fear of torture is not sufficient to satisfy the applicant’s
burden.”).
DENIED.
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