Arnoldo Santos v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLDO SANTOS, No. 21-70626
Petitioner, Agency No. A205-317-305
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
Pasadena, California
Before: WARDLAW and H.A. THOMAS, Circuit Judges, and ROSENTHAL,***
District Judge.
Arnoldo Santos (“Santos”), a native and citizen of Guatemala, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) affirming 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 Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
Immigration Judge’s (“IJ”) decision denying Santos’s application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We dismiss Santos’s asylum
claim and otherwise deny the petition for review.
We review the agency’s factual findings for substantial evidence, see Diaz-
Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020), and “we must uphold the
agency determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019); see also Nasrallah v. Barr,
140 S. Ct. 1683, 1692 (2020). “Where, as here, the BIA agrees with the IJ decision
and also adds its own reasoning, we review the decision of the BIA and those parts
of the IJ’s decision upon which it relies.” Duran-Rodriguez, 918 F.3d. at 1027–28
(9th Cir. 2019).
1. We lack jurisdiction to review the IJ’s denial of Santos’s asylum application
as untimely filed. The Immigration and Nationality Act strips courts of jurisdiction
to review agency determinations related to exceptions to the asylum-application
filing deadline, 8 U.S.C. § 1158(a)(3), except over “constitutional claims or
questions of law.” Id. § 1252(a)(2)(D); Alquijay v. Garland, 40 F.4th 1099, 1102
(9th Cir. 2022). “Our jurisdiction to review mixed questions of law and fact is
limited to instances where the underlying facts are undisputed.” Gasparyan v.
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Holder, 707 F.3d 1130, 1134 (9th Cir. 2013) (internal quotation marks and citation
omitted).
After considering Santos’s testimony and the information in the record, the IJ
found that Santos’s ignorance of the law, rather than any issues related to his mental
health, materially affected his ability to file timely an asylum application. The BIA
affirmed the IJ’s factual finding that that Santos had failed to show extraordinary
circumstances for missing the one-year deadline to file a timely asylum application.
We therefore lack jurisdiction to review the agency’s finding. See Sumolang v.
Holder, 723 F.3d 1080, 1082 (9th Cir. 2013) (holding that we lacked jurisdiction to
review the IJ’s determination “that [the applicant’s] filing delay was caused by her
ignorance of the one-year filing deadline, not . . . by the psychological trauma she
experienced”).
2. Substantial evidence also supports the agency’s denial of withholding of
removal based on the finding that Santos failed to establish a nexus between the
persecution he alleged and a protected ground. Singh v. Barr, 935 F.3d 822, 827
(9th Cir. 2019) (holding that an applicant must show that the protected ground “was
‘a reason’ for his persecution” (quoting Barajas-Romero v. Lynch, 846 F.3d 351,
360 (9th Cir. 2017))).
The record does not compel reversal of the IJ’s conclusion that the two
beatings Santos testified he received from Mara Salvatrucha gang members were not
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because of his political opinions or his membership in his proposed particular social
group of “young men who actively preach and proselytize for [e]vangelical
Christianity.” The gang members threatened Santos because he refused to join the
gang, but the members never referred to his political or religious beliefs as a reason
for their threats.
Because substantial evidence supports the BIA’s determination that Santos
failed to show a nexus between the persecution he identified and a protected ground,
Santos’s claim for withholding of removal fails. See Riera-Riera v. Lynch, 841 F.3d
1077, 1081 (9th Cir. 2016) (recognizing that a “lack of a nexus to a protected ground
is dispositive of [petitioner’s] asylum and withholding of removal claims”).
3. Finally, substantial evidence also supports the BIA’s denial of CAT relief.
To qualify for CAT protection, an applicant must show “that it is more likely than
not that he will be tortured upon removal, and that the torture will be inflicted at the
instigation of, or with the consent or acquiescence of, the government.” Arteaga v.
Mukasey, 511 F.3d 940, 948 (9th Cir. 2007). “Torture” is “an extreme form of cruel
and inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment or punishment that do not amount to torture.” 8 C.F.R. §
1208.18(a)(2).
The record does not compel the conclusion that the harm Santos suffered—
two assaults, one of which resulted in a facial scar but did not require medical
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treatment—rose to the level of torture. See, e.g., Vitug v. Holder, 723 F.3d 1056,
1066 (9th Cir. 2013) (holding that multiple physical beatings over several years and
economic deprivation did not rise to the level of torture). Substantial evidence also
supports the IJ’s determination that Santos did not show that “it is more than likely
than not that . . . [he] will be tortured” if removed to Guatemala. Kamalthas v. INS,
251 F.3d 1279, 1283 (9th Cir. 2001) (internal quotation marks omitted). This
evidence includes facts showing that members of Santos’s family who share his
religious beliefs and still live in his hometown have not been tortured or otherwise
harmed.
PETITION DISMISSED IN PART and DENIED IN PART.
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