Braulio Palermo-Hernandez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRAULIO PALERMO-HERNANDEZ, No. 16-72219
AKA Bravilio Hernandez, AKA Bravlio
Palermo Hernandez, AKA Bravilio Palermo- Agency No. A205-297-186
Hernandez, AKA Bravlio Palermo-
Hernandez,
MEMORANDUM*
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 31, 2022**
Seattle, Washington
Before: HAWKINS, McKEOWN, and SANCHEZ, Circuit Judges.
Petitioner Braulio Palermo-Hernandez, a native citizen of Mexico who has
resided within the United States since 2002, petitions for review of the Board of
*
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).
Immigration Appeals’ (“Board”) decision dismissing his appeal from an
immigration judge’s order denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Palermo-
Hernandez also appeals the Board’s determination that the immigration judge had
not prejudged his case in violation of due process. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
The immigration judge found that Palermo-Hernandez’s asylum application
was time-barred. See 8 U.S.C. § 1158(A)(2)(b). Palermo-Hernandez did not
challenge before the Board the immigration judge’s determination that his asylum
claim was untimely and has therefore failed to exhaust the issue. See 8 U.S.C. §
1252(d)(1) (“A court may review a final order of removal only if— (1) the alien
has exhausted all administrative remedies available to the alien as of right ....”).
We are precluded from considering his claim for asylum. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
We review the denial of withholding of removal and CAT relief for
substantial evidence, meaning that “[t]o reverse the [Board], 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.” Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017)
(internal quotation marks and citation omitted).
2
Withholding of removal requires a “showing by a ‘clear probability’ that the
petitioner’s life or freedom would be threatened in the proposed country of
removal.” Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020); 8 C.F.R. §
208.16(d). Substantial evidence supports the Board’s determination that Palermo-
Hernandez did not suffer past persecution based on a single punch to the nose
while trying to maintain order at a festival, and one or two death threats in a
separate encounter that resulted in no physical harm to petitioner or his family.
Persecution is “an extreme concept that does not include every sort of treatment
our society regards as offensive,” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.
1998), and threats unaccompanied by violence or injury generally do not rise to the
level of past persecution. Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000).
Next, Palermo-Hernandez bore the burden of demonstrating by objective
evidence that it is more likely than not he would be subject to persecution upon
deportation. Robleto-Pastora v. Holder, 591 F.3d 1051, 1057 (9th Cir. 2010). An
applicant does not qualify for withholding of removal if an immigration officer
finds that the “applicant could avoid a future threat to his or her life or freedom by
relocating to another part of the proposed country of removal and, under all the
circumstances, it would be reasonable to expect the applicant to do so.” 8 C.F.R.
§§ 208.16(b)(1)(i)(B), 208.16(b)(2); see Akosung v. Barr, 970 F.3d 1095, 1101
(9th Cir. 2020). The record establishes that Palermo-Hernandez and his family
3
relocated to Mexico City without incident for twelve to thirteen years before
leaving for the United States. Although Palermo-Hernandez points to certain
questions posed to his wife in 2012 about his whereabouts as evidence of a future
threat to his safety, the Board determined that these inquiries were “vague” and
insufficient to establish an objectively well-founded fear. Nothing in the record
compels a contrary conclusion. In short, substantial evidence supports the Board’s
determination that Palermo-Hernandez failed to establish a clear probability of
future persecution to qualify for withholding of removal.1
To qualify for protection under CAT, Palermo-Hernandez must demonstrate
that he would more likely than not be tortured by government actors, or tortured
with the acquiescence of government actors, if returned to the proposed country of
removal. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Substantial evidence supports
the Board’s determination that Palermo-Hernandez had not been tortured by any
government actor and he had not shown that any government official would seek to
torture him or “turn a blind eye” to any torture at the hands of a private actor. See
Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citation
1
The Board additionally determined that Palermo-Hernandez did not qualify for
withholding of removal because he did not establish that the prior incidents rose to
the level of persecution. We need not resolve this claim because Palermo-
Hernandez failed to establish that any persecution he might face due to this status
could not be avoided by relocating internally within the country. 8 C.F.R. §
208.16(b)(3).
4
omitted).
Finally, Palermo-Hernandez contends that the immigration judge may have
violated his due process rights by prejudging his case, and the Board’s review of
this claim lacked sufficient analysis or reasoning. We review due process claims
regarding deportation proceedings de novo. Antonio-Cruz v. INS., 147 F.3d 1129,
1131 (9th Cir. 1998) (citing to Getachew v. INS, 25 F.3d 841, 845 (9th Cir.1994)).
While petitioner adopts a strained view of the record to support his claim of bias,
we need not resolve this due process challenge because here, “the factual record
adequately supports the denial of an alien’s application for relief,” and “we cannot
find that [any] alleged bias held by the IJ was the basis for the denial of the
application.” Rivera v. Mukasey, 508 F.3d 1271, 1276 (9th Cir. 2007) (internal
citations omitted).
PETITION DENIED.
5