Pedro Nicolas v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Julio Marcos Pedro Nicolas, No. 21-758
Petitioner, Agency No. A213-082-427
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
Julio Marcos Pedro Nicolas, a native and citizen of Guatemala, petitions
for review of a decision of the Board of Immigration Appeals affirming an
immigration judge’s denial of his application for protection under the
Convention Against Torture (CAT). Because the Board summarily affirmed, we
review the immigration judge’s decision. Zehatye v. Gonzales, 453 F.3d 1182,
*
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).
1184 (9th Cir. 2006). We review the immigration judge’s factual findings for
substantial evidence. Lalayan v. Garland, 4 F.4th 822, 826 (9th Cir. 2021).
Under that standard, we must accept the immigration judge’s findings “unless
any reasonable adjudicator would be compelled to conclude to the contrary.”
Garland v. Ming Dai, 141 S. Ct. 1669, 1677 (2021) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
To establish eligibility for protection under the CAT, a petitioner must
demonstrate that “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” Cole v. Holder, 659 F.3d 762,
770 (9th Cir. 2011) (quoting 8 C.F.R. § 208.16(c)(2)). Pedro Nicolas testified
that he would be kidnapped and killed upon returning to Guatemala by people
who would think that he had saved “a lot of money” while in the United States.
Even assuming that people in Guatemala would target Pedro Nicolas for that
reason, the immigration judge was not obligated to conclude that Pedro Nicolas
would therefore experience torture, as opposed to a “lesser form[] of cruel,
inhuman or degrading” treatment such as robbery, which does not constitute
torture under the CAT. 8 C.F.R. § 208.18(a)(2); see Ruiz-Colmenares v.
Garland, 25 F.4th 742, 751 (9th Cir. 2022) (holding that “three instances of
robbery that resulted in . . . temporary bruises, none of which necessitated
medical treatment . . . [did] not rise to the level of torture”).
Although Pedro Nicolas was robbed three times in Guatemala before he
2 21-758
left for the United States, the immigration judge had reason to conclude that
Pedro Nicolas would not face even that level of violence upon his return,
considering that Pedro Nicolas had safely visited Guatemala in 2014. The
record does not compel a contrary conclusion.
Substantial evidence therefore supports the agency’s denial of Pedro
Nicolas’s CAT application.
PETITION DENIED.
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