Suy Suy v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 12 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PASCUAL SUY SUY, No. 21-1224
Agency No.
Petitioner,
A206-407-730
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 6, 2023 **
Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Petitioner Pascual Suy Suy, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an Immigration Judge’s (“IJ”) decision denying his application for asylum,
* 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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
Suy Suy claimed that he faced economic persecution in Guatemala because
he is an indigenous Mayan, and that he feared returning to Guatemala because of
poverty and gang violence. The IJ found Suy Suy statutorily ineligible for asylum
because he submitted his application outside the one-year deadline. See 8 U.S.C. §
1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2).1 The IJ also found that Suy Suy did not carry
his burden of proving membership in the proposed particular social group
“Guatemalan indigenous persons” because he “provided no identity documents”
confirming that he is either a citizen of Guatemala or Mayan. Notwithstanding this
finding, the IJ concluded that the harm Suy Suy suffered constituted “discrimination,
but not persecution,” so denied Suy Suy’s request for withholding of removal. The
BIA “adopt[ed] and affirm[ed]” the IJ’s denial of withholding of removal, and
“affirm[ed]” the denial of CAT protection.
“We review only the BIA’s opinion, except to the extent that it expressly
adopted portions of the IJ’s decision.” Rayamajhi v. Whitaker, 912 F.3d 1241, 1243
(9th Cir. 2019). “We review the agency’s factual findings under the extremely
deferential substantial-evidence standard, under which we treat such findings as
1 Suy Suy does not appeal the agency’s determination that he is statutorily
ineligible for asylum. The issue is therefore waived. See Aguilar-Ramos v. Holder,
594 F.3d 701, 703 n.1 (9th Cir. 2010).
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conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (internal
quotations omitted).
“Where the trier of fact determines that the applicant should provide evidence
that corroborates otherwise credible testimony, such evidence must be provided
unless the applicant does not have the evidence and cannot reasonably obtain the
evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Here, the IJ found Suy Suy’s credible
testimony insufficient to prove his membership in the “Guatemalan indigenous
persons” particular social group and noted the lack of corroborating identification
documents. The IJ erred by failing to allow Suy Suy “an opportunity to either
provide that corroboration or explain why he [could not] do so.” Ren v. Holder, 648
F.3d 1079, 1090–92 (9th Cir. 2011). This error is harmless, however, because the
agency ultimately determined that, even if Suy Suy established membership in his
proposed social group, he still failed to show a nexus between his fear of persecution
and his membership in that group. Cf. Bhattarai v. Lynch 835 F.3d 1037, 1043 (9th
Cir. 2016).
Moreover, substantial evidence supports the agency’s determination that Suy
Suy failed to demonstrate a “clear probability” of future persecution.2 See Aden v.
2 There is an intra-circuit split concerning the standard of review applicable to
the agency’s determination that a “particular set of facts does or does not rise to the
level of persecution.” See Fon v. Garland, 34 F.4th 810, 816 (9th Cir. 2022) (Graber,
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Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir. 2021). We have emphasized that
persecution “is an extreme concept that means something considerably more than
discrimination or harassment,” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir.
2021), and have cabined relief on the basis of economic deprivation to these
“extreme” circumstances. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th
Cir. 2004) (finding persecution where the government individually targeted,
harassed, and attacked petitioner making it “virtually impossible for [petitioner] to
earn a living”). While “substantial economic deprivation that constitutes a threat to
life or freedom can constitute persecution,” Zehatye v. Gonzales, 453 F.3d 1182,
1186 (9th Cir. 2006), Suy Suy’s concerns about finding work and his fear of living
in poverty do not “rise to the level of persecution.” See Gormley v. Ashcroft, 364
F.3d 1172, 1178 (9th Cir. 2004). Suy Suy testified that he worked in the fields for
three months of the year and found other work during the remaining months, which
supports the determination that the harm he fears is “not the type of economic
deprivation that rises to the level of persecution.” See Nagoulko v. INS, 333 F.3d
J., concurring); id. at 820 (Collins, J., concurring); compare Kaur v. Wilkinson, 986
F.3d 1216, 1221 (9th Cir. 2021) (de novo) with Villegas Sanchez v. Garland, 990
F.3d 1173, 1179 (9th Cir. 2021) (substantial evidence). We need not resolve this
issue, however, because no matter the standard of review, Suy Suy has not
established a clear probability of future persecution.
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1012, 1016 (9th Cir. 2003); He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (finding
no persecution where applicant “was able to continue working”).3
Substantial evidence also supports the BIA’s denial of CAT relief because
Suy Suy failed to show it is more likely than not he would be tortured by or with the
consent or acquiescence of the government if returned to Guatemala. Suy Suy
presented Country Conditions reports to support his argument that the Guatemalan
government cannot control violence and acquiesces in the persecution of its citizens.
But “[g]eneralized evidence of violence and crime is insufficient to establish a
likelihood of torture.” Park v. Garland, 72 F.4th 965, 980 (9th Cir. 2023). Suy Suy
provided no “particularized and non-speculative risk of torture.” Id. The Country
Conditions reports were “insufficient to show that individually” Suy Suy would
more likely than not be tortured if removed to Guatemala. See Dawson v. Garland,
998 F.3d 876, 885 (9th Cir. 2021).
PETITION DENIED.
3 This is not to say a finding of persecution requires “an absolute inability to
support oneself or one’s family.” Gormley, 364 F.3d at 1178.
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