Volanos-Vega v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Samuel Volanos-Vega, No. 22-1012
Petitioner, Agency No. A073-827-032
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 21, 2023**
San Francisco, California
Before: VANDYKE and SANCHEZ, Circuit Judges, and MURPHY,*** District
Judge.
Samuel Volanos-Vega (“Volanos-Vega”), a native and citizen of El
Salvador, petitions for review of a Board of Immigration Appeals’ (“BIA”)
order dismissing his appeal of an Immigration Judge’s (“IJ”) decision. 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 Stephen J. Murphy, III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
agency found Volanos-Vega’s original asylum application frivolous, his second
application time-barred, and found that he failed to establish eligibility for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition for review.
1. A frivolousness finding must comply with a four-part regulatory
framework. “First, an asylum applicant must have notice of the consequences
of filing a frivolous application. Second, the IJ or Board must make specific
findings that the applicant knowingly filed a frivolous application. Third, those
findings must be supported by a preponderance of the evidence. Finally, the
applicant must be given sufficient opportunity to account for any discrepancies
or implausibilities in his application.” Ahir v. Mukasey, 527 F.3d 912, 917 (9th
Cir. 2008) (internal citations omitted). “Whether the IJ properly applied the
regulatory framework is a question of law” that we review de novo, while
administrative findings of fact “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Kulakchyan v.
Holder, 730 F.3d 993, 995 (9th Cir. 2013) (citations omitted).
Volanos-Vega argues that the BIA erred in upholding the IJ’s finding that
1
Where, as here, the BIA adopted and affirmed the IJ’s decision pursuant to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we revisit both
decisions and treat the IJ’s reasons as those of the BIA.” Gutierrez v. Holder,
662 F.3d 1083, 1086 (9th Cir. 2011) (citation omitted).
2
he filed a frivolous asylum application in 1998, because he did not know that an
asylum application falsely asserting he was from Guatemala had been prepared
on his behalf by his brother. He further contends that he did not receive
adequate notice of the consequences of filing a frivolous application.
Substantial evidence supports the agency’s determination that Volanos-
Vega received adequate notice. Volanos-Vega’s signature and printed name
appear directly below the warnings in his application and the application-
preparer signed a declaration attesting that the completed application was read
to Volanos-Vega in his native language before it was signed. This is sufficient
to support the agency’s finding. See id.; Cheema v. Holder, 693 F.3d 1045,
1049-50 (9th Cir. 2012).
The agency also provided cogent and convincing reasons for finding that
Volanos-Vega “knowingly filed a frivolous application,” and this finding is
supported by a preponderance of the evidence. Ahir, 527 F.3d at 917;
Fernandes v. Holder, 619 F.3d 1069, 1076 (9th Cir. 2010). Volanos-Vega
attended his initial master hearing in 1998 where he admitted, through counsel,
that he received proper service of the Notice to Appear and admitted the factual
allegations therein, including that he is a native and citizen of Guatemala. was
personally served with the IJ’s order granting voluntary departure to Guatemala,
told immigration officers that he was from Guatemala, and testified that he
trusted his brother’s advice that he was less likely to be deported if he said he
was a juvenile from Guatemala. We therefore affirm the agency’s finding that
3
Volanos-Vega filed a frivolous application. See Fernandes, 619 F.3d at 1076;
Ahir, 527 F.3d at 918.
2. Substantial evidence supports the agency’s determination that
Volanos-Vega’s application for withholding of removal fails on the merits. 2 A
withholding of removal applicant must demonstrate that a protected ground is
“a reason” for future persecution. 8 U.S.C. § 1231(b)(3)(A); see also Barajas-
Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017). Volanos-Vega could only
speculate as to why three of his family members died during the civil war in El
Salvador because he was a child at the time. And he identified no recent threats
made by any group against him or members of his family. Substantial evidence
therefore supports the agency’s finding that Volanos-Vega failed to provide
sufficient evidence that family membership was “a reason” for past or future
persecution. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890–91 (9th Cir.
2021); Zetino v. Holder, 622 F.3d 1007, 1015–1016 (9th Cir. 2010).
3. To qualify for CAT protection, Volanos-Vega bears the burden of
showing that he “is more likely than not to be tortured in [El Salvador].” Zheng
v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.16(c)(4)).
The record supports the agency’s finding that Volanos-Vega failed to meet his
burden because he provided no evidence, aside from his own belief, that the
2
Although the frivolousness finding forecloses Volanos-Vega’s asylum
application, it does not preclude him from seeking withholding of removal or
protection under CAT. See 8 C.F.R. § 1208.20.
4
death squads who previously killed his family members decades ago intend to
harm him if he returns. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir.
2021) (“[S]peculative fear of torture is not sufficient to satisfy the applicant’s
burden” for protection under CAT.). The agency also considered country
conditions evidence and found the evidence insufficient to establish a
particularized threat of torture. The record does not compel a contrary
conclusion. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th Cir. 2008).
The motion for a stay of removal, Docket No. 2, is denied as moot. The
temporary stay of removal remains in effect until issuance of the mandate.
PETITION DENIED.
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