Escobar-Bamaca 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NOT FOR PUBLICATION FILED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
Odilio Escobar-Bamaca, No. 22-485
Agency No.
Petitioner, A213-612-142
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**
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and McMAHON, District
Judge.***
Odilio Escobar-Bamaca (“Escobar-Bamaca”), a native and citizen of
Guatemala, 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 Colleen McMahon, United States District Judge for
the Southern District of New York, sitting by designation.
his applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”), as well as the BIA’s order denying his
motion to reopen. We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.
1. Substantial evidence supports the BIA’s determination that
Escobar-Bamaca failed to demonstrate eligibility for asylum.1 An applicant
“bears the burden of proving eligibility for asylum and must demonstrate that he
has suffered past persecution or has a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group,
or political opinion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019); see also 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(a). Escobar-
Bamaca alleges that he has suffered past persecution and has a well-founded
fear of future persecution based on his membership in two proposed particular
social groups: “Guatemalan men perceived to have COVID and returning to
Guatemala” and “Guatemalan men who support the Venado political party.”
The BIA correctly determined that the proposed particular social group of
“Guatemalan men perceived to have COVID and returning to Guatemala” was
1
Although the IJ found that Escobar-Bamaca was ineligible for asylum because
his application was time-barred, the BIA “assum[ed] arguendo that the
respondent was not precluded from pursuing his asylum claim” and held that
Escobar-Bamaca did not carry his burden of establishing eligibility for asylum.
While Escobar-Bamaca continues to raise arguments regarding the timeliness of
his asylum application, we need not reach the question because we affirm the
BIA’s merits determination that Escobar-Bamaca is ineligible for asylum.
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not cognizable under the Immigration and Nationality Act. As Escobar-Bamaca
presumably no longer has COVID—and a significant percentage of the world’s
population has now been infected with COVID—this proposed social group is
not “(1) composed of members who share a common immutable characteristic,
(2) defined with particularity,” or “(3) socially distinct within the society in
question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014).
Assuming, as the BIA did, that “Guatemalan men who support the
Venado political party” is a cognizable particular social group, substantial
evidence supports the agency’s determination that the harm suffered by
Escobar-Bamaca did not rise to the level of past persecution. When evaluating
past persecution, we consider the “cumulative effect of all the incidents a
petitioner has suffered” and ask whether “the treatment [he] received rises to the
level of persecution.” Korablina v. INS, 158 F.3d 1038, 1043–44 (9th Cir.
1998). Here, Escobar-Bamaca testified that he received a veiled threat from a
man named Gerardo at a soccer game in 1995, after which he fled to the
mountains to work and bring food home to his family. He remained in
Guatemala, unharmed, for three years until he arrived in the United States.
While Escobar-Bamaca believes that his brother-in-law was murdered by
Gerardo in 1998, it appears that killing was a case of mistaken identity and
unrelated to Escobar-Bamaca. Escobar-Bamaca heard nothing further from
Gerardo until after he left the country in 1998, when he testified that his family
told him Gerardo surrounded his house and asked about him. Viewing the
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record as a whole, Gerardo’s threats and inquires do not rise to the level of
persecution.
The record likewise does not compel a finding that Escobar-Bamaca had
an “objectively reasonable” fear of future persecution. Escobar-Bamaca was
last threatened by Gerardo in 1995, and there is no evidence in the record that
Gerardo has ever sought to discern Escobar-Bamaca’s whereabouts after 1998
or that he continues to threaten Escobar-Bamaca’s safety. See Gu v. Gonzales,
454 F.3d 1014, 1021–22 (9th Cir. 2006) (rejecting a well-founded fear of future
persecution where the record was “devoid of any evidence” that the alleged
persecutors had any continuing interest in the petitioner). Escobar-Bamaca’s
country conditions evidence demonstrates that Guatemala has a general problem
with gang-related violence, but not that Escobar-Bamaca personally is likely to
face persecution if he returned to Guatemala. See Lata v. INS, 204 F.3d 1241,
1245 (9th Cir. 2000). Escobar-Bamaca additionally failed to demonstrate that
he could not “avoid persecution by relocating to another part of” Guatemala. 8
C.F.R. § 1208.13(b)(2)(ii).
Finally, substantial evidence supports the agency’s denial of Escobar-
Bamaca’s asylum application because he failed to show the Guatemalan
government is “unable or unwilling” to protect him from future persecution.
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). While Escobar-
Bamaca testified that he believes the Guatemalan police are “powerless,” he
never contacted the police to report the threats or fears. And the record
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indicates that the Guatemalan police did respond to the killing of Escobar-
Bamaca’s brother-in-law in 1998.
2. Because Escobar-Bamaca cannot meet his burden of proof of
demonstrating past persecution or a well-founded fear of future persecution for
his asylum claim, he also fails to meet the “more stringent” standard of
establishing “an independent showing of clear probability of future persecution”
for withholding of removal. Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir.
2010). Substantial evidence therefore supports the BIA’s denial of withholding
of removal.
3. Substantial evidence supports the BIA’s determination that
Escobar-Bamaca did not establish eligibility for CAT protection. In order to
qualify for CAT protection, a noncitizen 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 Gerardo’s threats and inquiries rose to the level of torture, see Tzompantzi-
Salazar v. Garland, 32 F.4th 696, 706 (9th Cir. 2022) (collecting cases), and
Escobar-Bamaca presents no evidence that the Guatemalan government
acquiesced to them.
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4. Finally, the BIA did not abuse its discretion in denying Escobar-
Bamaca’s motion to reopen proceedings, which was filed as a motion to
reconsider. Escobar-Bamaca’s motion was predicated, in part, on a report
noting an increase in gang-related violence in Guatemala in 2020. Escobar-
Bamaca’s evidence does not meet his “heavy burden” to demonstrate that the
new evidence would likely change the result in the case, see Matter of Coelho,
20 I. & N. Dec. 464, 473 (BIA 1992) (citation omitted), as his “desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.” Flores-Vega v. Barr, 932 F.3d
878, 887 (9th Cir. 2019) (quoting Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010)).
PETITION DENIED. 2
2
We deny Escobar-Bamaca’s motion to stay removal (Dkt. 2) as moot. The
temporary stay of removal remains in place until the mandate issues.
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