Duenas Quinto v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE DUENAS QUINTO, No. 21-919
Petitioner, Agency No. A206-236-922
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 07, 2023**
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN,***
Judge.
Jorge Duenas Quinto, a Peruvian native and citizen, petitions for review of
the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s
(IJ) denial of his applications for asylum and withholding of removal under 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).
***
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
Immigration and Nationality Act and withholding of removal under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).
“We review the BIA’s denials of asylum, withholding of removal, and
CAT relief for ‘substantial evidence’ and will uphold a denial supported by
‘reasonable, substantial, and probative evidence on the record considered as a
whole.’” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014) (quoting
Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010)). “In order to reverse
the BIA, we must determine that the evidence not only supports a contrary
conclusion, but compels it—and also compels the further conclusion that the
petitioner meets the requisite standard for obtaining relief.” Id. (cleaned up).
“Where the BIA issues its own decision but relies in part on the immigration
judge’s reasoning, we review both decisions.” Singh v. Holder, 753 F.3d 826,
830 (9th Cir. 2014) (quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir.
2012)).
1. Duenas Quinto contends that the BIA and IJ erred in denying his
asylum application after determining that the Shining Path did not persecute him
on account of his political opinion or membership in a particular social group.
See 8 U.S.C. § 1101(a)(42). He argues that he was persecuted on account of his
imputed political opinion, or in the alternative, for remaining politically neutral
when it was hazardous to do so. The BIA and IJ found that Duenas Quinto was
not persecuted on account of his political opinion; he was threatened to obtain
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information about his aunt and was subject to recruitment efforts for his
intelligence.
Duenas Quinto’s brief asserts only that he and his family opposed the
Shining Path. He has not presented evidence of persecution based on this
opposition or any other political stance. See INS v. Elias-Zacarias, 502 U.S. 478,
483–84 (1992) (holding that petitioner must show persecution because of his
political opinion, not just refusal to join criminal organization); Barajas-Romero
v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (“[I]f the persecutor has no idea what
the victim’s political opinion is and does not care what it is, then even if the victim
does reasonably fear persecution, it would not be ‘on account of’ the victim’s
political opinion.”); Navas v. INS, 217 F.3d 646, 659 (9th Cir. 2000) (“To
establish imputed political opinion, an applicant must show that his persecutors
actually imputed a political opinion to him.” (internal quotation marks and
citation omitted)). The BIA and IJ’s rejection of this protected ground is
supported by substantial evidence.
Duenas Quinto also argues that because he was threatened by the Shining
Path to gain information about his aunt’s whereabouts, he has shown persecution
on account of his membership in a particular social group: his aunt’s family. The
BIA and IJ found that Duenas Quinto had not shown the requisite nexus because
the Shining Path did not threaten Duenas Quinto based on animus toward his
family, but to obtain information about his aunt’s location. The BIA and IJ both
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relied on Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (B.I.A. 2017),1 which held that
“the fact that a persecutor targets a family member simply as a means to an end
is not, by itself, sufficient to establish a claim, especially if the end is not
connected to another protected ground.” The BIA further noted that no other
family members were threatened by the Shining Path.
Reviewing the BIA and IJ’s findings about a persecutor’s motive for
substantial evidence, Lkhagvasuren v. Lynch, 849 F.3d 800, 803 (9th Cir. 2016)
(per curiam), the record supports the agency’s conclusion that any persecution or
fear of future persecution Duenas Quinto experienced was not based on his family
membership but because of the Shining Path’s desire to locate his aunt. The
record also supports the BIA and IJ’s conclusion that Duenas Quinto was targeted
“simply as a means to an end.” See Matter of L-E-A-, 27 I. & N. Dec. at 45; see
also id. at 45–47. The evidence does not compel a contrary result, so we must
uphold the BIA’s decision.2 Parussimova v. Mukasey, 555 F.3d 734, 738 (9th
Cir. 2009).
1
A portion of Matter of L-E-A, 27 I & N. Dec. 40 (B.I.A. 2017) that is not relevant
here was overruled by the Attorney General. See Matter of L-E-A-, 27 I. & N.
Dec. 581 (A.G. 2019). But that decision was later “vacated in its entirety” by the
Attorney General—thereby reinstating the BIA’s 2017 decision. Matter of
L-E-A-, 28 I & N. Dec. 304 (A.G. 2021).
2
The Government does not defend the IJ’s determination that Duenas Quinto’s
asylum claim was time-barred or the IJ’s determination that he would have denied
asylum as a matter of discretion had Duenas Quinto demonstrated the required
nexus. Thus, like the BIA, we presume Duenas Quinto timely filed his asylum
application and need not address the IJ’s denial as a matter of discretion.
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2. Because the BIA’s denial of Duenas Quinto’s asylum application is
supported by substantial evidence, Duenas Quinto has likewise not satisfied the
more stringent standard for withholding of removal. See Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003).
3. Duenas Quinto also contends that the BIA erred in denying CAT
relief because he presented evidence that the Peruvian government cannot control
the Shining Path. To be eligible for CAT relief, Duenas Quinto must show that
“it is more likely than not” that a government official will inflict, instigate,
consent to, or acquiesce in his torture. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
The BIA and IJ found that rather than acquiesce to the Shining Path’s criminal
activity, the Peruvian government actively combats the Shining Path and has
generally succeeded in those efforts. In any event, evidence that the government
cannot stop the torture is not evidence that the government acquiesces in the
torture. Garcia-Milian, 755 F.3d at 1034 (“A government does not acquiesce in
the torture of its citizens merely because it is aware of torture but powerless to
stop it.” (cleaned up)).
PETITION DENIED.
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