Manuel Fontes Garcia v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
MAR 10 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL FONTES GARCIA, No. 20-70729
Petitioner, Agency No. A201-564-438
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2023**
Las Vegas, Nevada
Before: CLIFTON, BYBEE, and BENNETT, Circuit Judges.
Petitioner Manuel Fontes Garcia, a native and citizen of Cuba, seeks review
of the Board of Immigration Appeals’ (BIA) decision denying his application for
asylum. The BIA affirmed the immigration judge’s (IJ) determination that Fontes
*
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).
Garcia was ineligible for asylum because the treatment he complained of was
prosecution, not persecution, and he failed to establish past persecution or a well-
founded fear of future persecution. Because substantial evidence supports finding
that Fontes Garcia’s treatment was not persecution due to political opinion we deny
the petition.
We have jurisdiction to review the BIA’s decision under 8 U.S.C. §
1252(a)(1). Where, as here, the BIA affirms the IJ and incorporates the IJ’s
reasoning, we review both the decision of the BIA and the IJ. Sinotes-Cruz v.
Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). We review factual findings,
including whether an applicant demonstrated asylum eligibility, for substantial
evidence. Rodrigues Tornes v. Garland, 993 F.3d 743, 750 (9th Cir. 2021). The
BIA’s findings are “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
To establish eligibility for asylum, an applicant must demonstrate either past
persecution or a well-founded fear of future persecution and that the “persecution
was or will be on account of” a protected ground (race, religion, nationality,
membership in a particular social group, or political opinion). Ayala v. Holder,
640 F.3d 1095, 1097 (9th Cir. 2011); see 8 U.S.C. §§ 1158(b)(1)(A),
1101(a)(42)(A). “[T]he protected ground cannot play a minor role . . . [I]t cannot
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be incidental, tangential, superficial, or subordinate to another reason for harm.”
Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (citation omitted).
Importantly, “[w]e have long distinguished persecution from prosecution,” Li v.
Holder, 559 F.3d 1096, 1108 (9th Cir. 2009), and “[p]ersons avoiding lawful
prosecution for common crimes are not ordinarily deemed refugees.” Chanco v.
INS, 82 F.3d 298, 301 (9th Cir. 1996). Furthermore, “[i]t is only where there
appears to be no other logical reason for the persecution at issue that the IJ may
draw the inference that the police investigation is a subterfuge for political
harassment.” Dinu v. Ashcroft, 372 F.3d 1041, 1045 (9th Cir. 2004) (internal
quotation marks and citation omitted).
Substantial evidence supports the IJ and BIA’s conclusion that the treatment
Fontes Garcia complains of was prosecution rather than persecution on the basis of
political opinion. Fontes Garcia provided evidence, including payment receipts
and a court order, of fines for failing to provide proof of purchase for the
merchandise in his stores. Further, he testified that he does not belong to any
particular social group and denied activity in anti-government parties or
organizations. There is no evidence aside from Fontes Garcia’s testimony that
police confiscated his goods, detained him, and fined him because of his pro-
private business views.
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Furthermore, on the record in this case, a reasonable adjudicator would not
be compelled to conclude that Fontes Garcia suffered past persecution or had a
well-founded fear of future persecution in Cuba. “Persecution is an extreme
concept that does not include every sort of treatment our society regards as
offensive.” Wakkary v. Holder, 558 F.3d 1049, 1059 (9th Cir. 2009) (internal
quotation marks and citation omitted). This court has recognized that “[t]hreats
standing alone . . . constitute past persecution in only a small category of cases, and
only when the threats are so menacing as to cause significant actual suffering or
harm.” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (internal quotation marks
and citation omitted).
Fontes Garcia alleges that the police repeatedly confiscated merchandise,
detained him, and issued fines for failure to provide proof of purchase of the goods
at his businesses. He was never physically injured while detained. As discussed
above, this type of treatment supports an inference of prosecution rather than
persecution. See Ahmed v. Keisler, 504 F.3d 1183, 1195 (9th Cir. 2007)
(explaining that “[o]rdinary prosecution for criminal activity is generally not a
ground for relief,” but “if the prosecution is motivated by a protected ground, and
the punishment is sufficiently serious or disproportionate, the sanctions imposed
can amount to persecution”).
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Because the record does not compel a conclusion of past persecution, Fontes
Garcia must demonstrate a well-founded fear of future persecution with a
“subjectively genuine and objectively reasonable” fear of future persecution.
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc)
(citation omitted). He must show “by credible, direct, and specific evidence in the
record . . . facts supporting a reasonable fear of persecution on the relevant
ground.” Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). The record
does not compel a conclusion that Fontes Garcia demonstrated a well-founded fear
of future persecution. As the IJ and BIA recognized, he was able to live and work
in Cuba, obtain business permits and renew those permits, obtain a passport and
freely travel out of the country, and own and sell property in the country. See
Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir. 1987) (well-founded fear
undermined by the fact that petitioner was “able to leave the country . . . without
any interference from the government”). Further, the Country Conditions Report
demonstrated that roughly one-third of Cuba’s total workforce works in the private
sector, suggesting that the government does not systematically persecute all those
who work in the private sector for their political opinions.
The temporary stay of removal remains in place until the mandate
issues. The motion for a stay of removal is otherwise denied.
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PETITION DENIED.
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