Edgar Lara Farias v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ABRAHAM LARA FARIAS, No. 16-72045
Petitioner, Agency No. A206-411-796
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2022**
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and CARDONE,*** District Judge.
Edgar Abraham Lara Farias seeks review of the Board of Immigration
Appeal’s (“BIA”) dismissal of an Immigration Judge’s (“IJ”) decision denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel granted the parties’ joint motion to submit this case on the
briefs and record, without oral argument.
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
1. The agency did not commit reversible error in concluding that Lara
Farias is ineligible for asylum. Lara Farias’s argument that the agency did not
consider the changed circumstances exception to the one-year bar for asylum
applications is unavailing because the BIA denied his asylum claim on the merits.1
Substantial evidence supports the agency’s finding that Lara Farias did not
establish past persecution or a well-founded fear of future persecution. Although
Lara Farias’s mother was subject to extortion attempts in Mexico, she refused to
pay on four occasions and no one in the family was harmed as a result.2 See Hoxha
v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (characterizing “unfulfilled
threats” as “harassment rather than persecution”). We agree with the agency that
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The BIA’s assertion that Lara Farias did “not contest[]” the IJ’s timeliness
finding is belied by the record. “As a general rule, the BIA errs if it ignores
material issues or arguments raised on appeal . . . .” Zamorano v. Garland, 2 F.4th
1213, 1228 (9th Cir. 2021). But any error here is harmless because the BIA
considered the merits of Lara Farias’s application. See id.2
Lara Farias argues that the IJ’s finding that his mother identified the
extortionists “based on rumors and conjecture” is not supported by the record. We
disagree. Although Lara Farias testified that Los Zetas identified themselves when
threatening his mother, he also testified that after receiving the threats, his mother
“talked to [his] brother-in-law” and “they found out that it was the zetas.” Lara
Farias testified that he did not know how his brother-in-law confirmed that Los
Zetas were the extortionists.
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the threats related to Lara Farias’s cousin are too speculative to constitute
persecution. See Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir. 2018). Lara
Farias provided only a few details about the threats his family received because of
his cousin’s cartel involvement. He testified that several members of his extended
family were threatened about five months after his cousin’s arrest, but he did not
know who made the threats or provide additional detail about the substance of the
threats. The remaining incidents—which stem from generalized violence in
Mexico—do not amount to persecution. See Lolong v. Gonzales, 484 F.3d 1173,
1179–80 (9th Cir. 2007) (en banc) (holding that “a general, undifferentiated claim”
of civil strife “does not render an alien eligible for asylum”).
We reject Lara Farias’s contention that the agency did not consider the
threats against his cousin’s family or the killing of his mother’s neighbor. The IJ
considered Lara Farias’s fear based on “reprisals that he believes will be taken
against him as a result of his cousin’s [cartel-related] activities,” and the IJ
concluded his fear was speculative. The BIA agreed “that the threats and violence
described by [Lara Farias]” were insufficient to show that he is eligible for asylum,
and substantial evidence supports this determination. Lara Farias offered no
evidence and no explanation on appeal to suggest that he and his mother’s
neighbor are similarly situated. See id. The killing of his mother’s neighbor is
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therefore an example of generalized violence in Mexico, which the agency
considered when evaluating his claim.
Lara Farias contends that his lack of contact with members of any drug
cartels does not undermine the objective reasonableness of his fear of persecution.
We disagree. Lara Farias admitted that the men in his family have not been
harmed by the cartel, and that he, himself, has never been threatened or harmed in
Mexico. See Bartolome, 904 F.3d at 814.
Substantial evidence also supports the agency’s conclusion that Lara Farias
did not establish a nexus between past persecution, or a well-founded fear of future
persecution, and a statutorily protected ground. Lara Farias argues his family is a
“particular social group” for purposes of the asylum statute. But even if he is
correct, see Molina-Estrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002) (as
amended), the continuing safety of his family in Mexico supports the agency’s
conclusion that Lara Farias failed to establish a well-founded fear of persecution.
See Santos-Lemus v. Mukasey, 542 F.3d 738, 743–44 (9th Cir. 2008), abrogated on
other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en
banc). Moreover, Lara Farias’s “desire to be free from . . . random violence by
gang members bears no nexus to a protected ground.”3 Zetino v. Holder, 622 F.3d
3Lara Farias waived any challenge to the agency’s denial of his request for
withholding of removal by failing to raise the issue in his opening brief. See Singh
v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004). But even assuming Lara
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1007, 1016 (9th Cir. 2010) (as amended).
2. Substantial evidence supports the agency’s conclusion that Lara Farias
did not establish that he is eligible for CAT relief. Lara Farias has not been
harmed, let alone tortured, in Mexico in the past. See Zheng v. Holder, 644 F.3d
829, 835 (9th Cir. 2011). His “generalized evidence of violence and crime in
Mexico is not particular to [him] and is insufficient to” constitute torture.
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam). The
remaining incidents—threats and extortion against Lara Farias’s family—do not
compel the conclusion that torture is more likely than not to occur. See Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1027, 1029–30 (9th Cir. 2019) (concluding a
petitioner did not show it was more likely than not that he would be tortured, even
though he received death threats).
Substantial evidence also supports the agency’s determination that any
torture Lara Farias may experience would not be “inflicted by, or at the instigation
of, or with the consent or acquiescence of,” the Mexican government. See 8 C.F.R.
§ 1208.18(a)(1). Lara Farias argues that the record contains evidence of
“widespread corruption in Mexico,” and that there is “no certainty” that the police
Farias challenged the agency’s determination, he “has not met the lesser burden of
establishing his eligibility for asylum,” and thus “he necessarily has failed to meet
the more stringent ‘clear probability’ burden required for withholding of
deportation.” Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001).
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will protect him from criminal organizations. But, as the agency observed, there is
also evidence in the record that shows that the Mexican government is taking steps
to combat criminal organizations. See Garcia-Milian v. Holder, 755 F.3d 1026,
1035 (9th Cir. 2014) (as amended). Lara Farias also argues that Mexican law
enforcement is ineffective, but even if he is correct, “general ineffectiveness on the
government’s part to investigate and prevent crime will not suffice to show
acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (as
amended).
The petition for review is DENIED.
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