Ricardo Neyra-Moncada v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 28 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO NEYRA-MONCADA, No. 18-72194
Petitioner, Agency No. A206-915-823
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 28, 2023**
San Francisco, California
Before: FRIEDLAND, BADE, and KOH, Circuit Judges.
Ricardo Neyra-Moncada, a native and citizen of Nicaragua, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) upholding the
Immigration Judge’s (“IJ”) denial of his applications for asylum and withholding
*
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).
of removal.1 We deny the petition.
Because the BIA adopted and affirmed the IJ’s decision under Matter of
Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we review the IJ’s order as if it
were the BIA’s.” Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).
“We review for substantial evidence factual findings underlying the [agency’s]
determination that a petitioner is not eligible for asylum . . . [or] withholding of
removal . . . .” Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022).
To prevail under this standard, “the petitioner must show that the evidence not only
supports, but compels the conclusion that these findings and decisions are
erroneous.” Id. (quotation marks omitted).
1. Substantial evidence supports the agency’s determination that Neyra-
Moncada is ineligible for asylum. He testified that he did not know what
motivated his cousin to rape him, and that his father never told him that he
disapproved of Neyra-Moncada’s sexual orientation. Although Neyra-Moncada
also testified that gang members sought to recruit him because of his sexual
orientation, he further explained that the gang members believed that because of
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The agency also deemed Neyra-Moncada not credible with respect to his
testimony regarding finding employment, and denied his petition for protection
under the Convention Against Torture. Neyra-Moncada did not contest these
issues in his opening brief, and therefore forfeited these issues, even under the
liberal construction of claims required for pro se litigants. See Corro-Barragan v.
Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013); Gonzalez-Castillo v. Garland, 47
F.4th 971, 980 (9th Cir. 2022).
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this fact, the authorities would not view him as dangerous or a criminal. From this
testimony, the IJ concluded that the gang members were not centrally motivated by
Neyra-Moncada’s sexual orientation, but rather by the furtherance of their criminal
enterprise. The agency therefore permissibly determined that Neyra-Moncada did
not meet his burden of showing that his sexual orientation was “at least one central
reason” for his cousin’s abuse or gang members’ attempt to recruit him. 8 U.S.C.
§ 1158(b)(1)(B)(i). And although Neyra-Moncada did testify that he experienced
harassment and discrimination because of his sexual orientation, the record does
not compel the conclusion that this harm rose to the level of past persecution.
Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 1996) (en banc) (“Persecution . . . does
not include mere discrimination, as offensive as it may be.”).
Because Neyra-Moncada did not demonstrate past persecution, he was not
entitled to a rebuttable presumption of a well-founded fear of future persecution.
See 8 C.F.R. § 1208.13(b)(1). Moreover, substantial evidence supports the
agency’s determination that he failed to establish an objective basis for a well-
founded fear of future persecution. Enough time had passed and enough
circumstances had changed to render Neyra-Moncada’s fear of harm at the hands
of his cousin or gang members speculative. See Nagoulko v. INS, 333 F.3d 1012,
1018 (9th Cir. 2003). And the record does not compel the conclusion that
discrimination toward LGBTQI individuals in Nicaragua, although pervasive,
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qualifies as a pattern or practice of persecution. See Wakkary v. Holder, 558 F.3d
1049, 1060-62 (9th Cir. 2009). Finally, although Neyra-Moncada demonstrated
that the LGBTQI community in Nicaragua is a disfavored group, the agency
permissibly determined that he did not face a sufficient individualized risk to
establish a well-founded fear of future persecution. See id. at 1062-63.
2. Substantial evidence also supports the agency’s determination that Neyra-
Moncada is ineligible for withholding of removal. Given his testimony that he did
not know what motivated his cousin’s sexual abuse, the agency permissibly
determined that he did not meet his burden of showing that his sexual orientation
was “a reason” for that harm. Barajas-Romero v. Lynch, 846 F.3d 351, 359-60
(9th Cir. 2017). Although his sexual orientation was “a reason” motivating some
of the other harms he faced, the record does not compel the conclusion that these
harms rose to the level of persecution. Id.; see Fisher, 79 F.3d at 962. As with his
asylum claim, Neyra-Moncada’s fear of future persecution―at the hands of his
cousin, gang members, or others―is speculative; the record therefore also does not
compel the conclusion that he would face a clear probability of persecution if he
returns to Nicaragua. See Nagoulko, 333 F.3d at 1018; Tamang v. Holder, 598
F.3d 1083, 1091 (9th Cir. 2010).
PETITION DENIED.
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