De Salinas Franco v. 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NOT FOR PUBLICATION FILED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
YONATAN DE SALINAS FRANCO, No. 21-1056
Petitioner, Agency No. A208-740-702
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 18, 2023**
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and ROSENTHAL,*** District
Judge.
Yonatan de Jesus Salinas Franco (“Salinas Franco”), a native and citizen
of El Salvador, petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying
*
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.
his applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). As the parties are familiar with the facts
of this case, we do not recount them here. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence, Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019), meaning that “[t]o 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,” Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (cleaned up).
1. Substantial evidence supports the BIA’s denial of asylum and
withholding of removal based on its conclusion that Salinas Franco failed to
establish a nexus between any persecution and a protected ground. See Aden v.
Wilkinson, 989 F.3d 1073, 1084 (9th Cir. 2021) (explaining that to meet the
nexus requirement for asylum, “an applicant must show that the protected
ground was ‘at least one central reason’ the applicant was persecuted” (quoting
8 U.S.C. § 1158(b)(1)(B)(i))); Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019)
(explaining that to meet the nexus requirement for withholding, 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 the conclusion that Salinas Franco
established a nexus to his membership in his proposed particular social group of
2
“Salvadoran male who fears being murdered by violent gang members.”
Rather, Salinas Franco testified that he was targeted by the police because he
was believed to be a gang member, either due to his youth or being mistaken for
his gang-member cousin. Salinas Franco fails to otherwise show that any harms
he suffered were motivated because of his membership in his particular social
group.
Nor does the record compel the conclusion that Salinas Franco
established a nexus to an imputed political opinion. Salinas Franco does not
identify any specific political opinion that he believes was imputed to him, let
alone present evidence that “‘his persecutors believed that he held . . . a political
opinion’” and “‘that he was harmed because of that political opinion.’” See
Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014) (quoting Baghdasaryan v.
Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)).
Because the record does not compel reversal of the BIA’s nexus
determination, Salinas Franco’s asylum and withholding of removal claims
necessarily fail.1 See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016)
(recognizing that a “lack of nexus to a protected ground is dispositive of
[petitioner’s] asylum and withholding of removal claims”).
1
We do not consider any matters “not specifically and distinctly raised and
argued” in Salinas Franco’s opening brief, including the agency’s findings that
the proposed particular social group was not cognizable and that the threats by
the gang members did not rise to the level of persecution. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
3
2. Substantial evidence supports the BIA’s denial of CAT relief.
Contrary to Salinas Franco’s argument, the record does not compel the
conclusion that the past harms he suffered—being threatened, robbed, and
punched twice—rise 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). Considering
the absence of past torture, the record does not compel the conclusion that
Salinas Franco “more likely than not will be tortured if [he] is removed” to El
Salvador. See id. Salinas Franco points to no other evidence “demonstrating
the particularized and more-likely-than-not threat of future torture needed to
obtain CAT relief.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 751 (9th Cir.
2022).
PETITION DENIED.
4