Jose Castaneda Flores v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE CASTANEDA FLORES, No. 17-73071
Petitioner, Agency No. A205-465-498
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2022*
San Francisco, California
Before: W. FLETCHER, GOULD, and COLLINS, Circuit Judges.
Jose Castaneda Flores, a native and citizen of Mexico and a naturalized
citizen of Ecuador, petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of Castaneda
Flores’s application for withholding of removal and protection under 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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1). We review the agency’s factual findings for substantial evidence.
Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011). We deny the
petition for review in part and dismiss it in part.
Substantial evidence supports the BIA’s finding that Castaneda Flores failed
to establish past persecution for purposes of withholding of removal because the
sole threat was vague, indirect, and unfulfilled. See Hussain v. Rosen, 985 F.3d
634, 647 (9th Cir. 2021) (“Unfulfilled threats are very rarely sufficient to rise to
the level of persecution[.]”); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th
Cir. 2019) (explaining that “threats alone, particularly anonymous or vague ones,
rarely constitute persecution”); Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th
Cir. 2010) (explaining the petitioner’s burden to show past persecution, including
establishing that “his treatment rises to the level of persecution”).
Substantial evidence also supports the BIA’s finding that Castaneda Flores
failed to establish a clear probability of future persecution for purposes of
withholding of removal. See Ramadan v. Gonzales, 479 F.3d 646, 658 (9th Cir.
2007) (per curiam) (finding threats of harm too speculative to meet the threshold
for withholding of removal); see also Tamang v. Holder, 598 F.3d 1083, 1094 (9th
Cir. 2010) (“[A] petitioner’s fear of future persecution is weakened, even undercut,
when similarly-situated family members living in the petitioner’s home country are
2
not harmed.” (citations and internal quotation marks omitted)).
We do not consider Castaneda Flores’s contention that the IJ erred in
analyzing the nexus between the feared persecution and the protected ground
because the BIA did not rely on that ground in its decision. See Santiago-
Rodriguez, 657 F.3d at 829 (“In reviewing the decision of the BIA, we consider
only the grounds relied upon by that agency.” (citation and internal quotation
marks omitted)).
We lack jurisdiction to consider Castaneda Flores’s arguments concerning
the particular social group of Americanized Mexican male deportees and any
childhood sexual abuse because he failed to raise them before the BIA. See Barron
v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004) (explaining that this Court lacks
jurisdiction to consider issues or claims not exhausted in administrative
proceedings below).
Substantial evidence supports the BIA’s finding that Castaneda Flores failed
to establish that he is “more likely than not [to] be tortured with the consent or
acquiescence of a public official if removed” to Mexico for purposes of CAT
protection. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020)
(explaining the petitioner’s burden to show eligibility for CAT protection).
Castaneda Flores’s contention that the BIA failed to analyze his CAT claim with
sufficient specificity lacks merit.
3
The stay of removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.
4