William Flores-Rivas v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM ERNESTO FLORES-RIVAS, No. 16-71018
AKA William Ernesto Chacon-Rivas, AKA
Jose Alfredo Flores, AKA Luis Alberto Agency No. A205-710-744
Flores, AKA Jose Alfredo Flores-Chacon,
AKA William Rivas, AKA William Ernesto
Rivas, MEMORANDUM*
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,*** 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 Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
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William Ernesto Flores-Rivas, a native and citizen of El Salvador, petitions
for review of an order of the Board of Immigration Appeals (BIA) upholding the
immigration judge’s denial of his applications for withholding of removal and
protection under the Convention Against Torture (CAT). We deny the petition.
1. Substantial evidence supports the agency’s determination that Flores-
Rivas is ineligible for withholding of removal. To qualify for withholding, a
petitioner must show a “clear probability” of persecution in the country of removal
on account of his race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); Navas
v. INS, 217 F.3d 646, 655 (9th Cir. 2000). While sexual orientation can be the
basis for establishing a particular social group, see Hernandez-Montiel v. INS, 225
F.3d 1084, 1093–94 (9th Cir. 2000), Flores-Rivas failed to demonstrate a clear
probability of persecution on this basis. He provided no evidence to support a
finding of past persecution on the basis of sexual orientation, and the BIA
permissibly determined based on the “totality of the record”—including
petitioner’s testimony, the country conditions evidence, and his brief return to El
Salvador—that Flores-Rivas did not establish a sufficient likelihood of future
persecution. See Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008).
2. Substantial evidence also supports the agency’s determination that
Flores-Rivas is not entitled to protection under CAT. To be entitled to CAT
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protection, Flores-Rivas must establish that, if returned to his home country, he is
“more likely than not” to face torture by or with the government’s acquiescence. 8
C.F.R. § 208.16(c)(2). While the country conditions evidence submitted by Flores-
Rivas indicates that those who are gay or bisexual face discrimination in El
Salvador, discrimination does not rise to the level of torture. Nuru v. Gonzales,
404 F.3d 1207, 1224 (9th Cir. 2005); Fisher v. INS, 79 F.3d 955, 962 (9th Cir.
1996) (en banc). Moreover, the country conditions evidence indicates that
incidents of discrimination were investigated by state authorities. Flores-Rivas
failed to demonstrate that he experienced past harm rising to the level of torture or
that he faces a particularized risk of torture (as opposed to discrimination) in El
Salvador. Nothing suggests that in denying relief the BIA failed to consider all
relevant evidence, and the record evidence does not compel a conclusion contrary
to that reached by the agency. See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir.
2011).
PETITION FOR REVIEW DENIED.