Gilber Elias-Vivas v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILBER ELIAS-VIVAS, AKA Gilber Ellas- No. 20-70626
Vivar,
Agency No. A088-771-030
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2022**
Pasadena, California
Before: BRESS and BUMATAY, Circuit Judges, and LASNIK,*** District Judge.
Gilber Elias-Vivas petitions for review of the Board of Immigration Appeals’
(“BIA”) decision denying his applications for withholding of removal and protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
We previously granted the parties’ joint motion to submit this case on
the briefs.
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
under the Convention Against Torture (“CAT”). We review agency findings of fact
for substantial evidence. 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). We review questions of law and constitutional claims de novo.
Young Sun Shin v. Mukasey, 547 F.3d 1019, 1023 (9th Cir. 2008). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Substantial evidence supports the denial of Elias-Vivas’s withholding
of removal claim. To qualify for withholding of removal, an applicant must show
that it is more likely than not that he will be persecuted on account of a protected
ground (i.e., race, religion, nationality, membership in a particular social group, or
political opinion). See Barajas-Romero v. Lynch, 846 F.3d 351, 358–60 (9th Cir.
2017); 8 C.F.R. § 208.16(b).
Elias-Vivas argues that he will be persecuted on account of his familial ties,
his status as a cooperating witness/victim, and an imputed “anti-organized crime”
political opinion. The BIA concluded that Elias-Vivas failed to demonstrate a nexus
to a protected ground because Elias-Vivas’s alleged persecutors were motivated
solely by illicit financial gain, not animus towards his family, his political opinion,
or any other protected ground. Substantial evidence supports the BIA’s conclusion
because the record supports that Elias-Vivas’s alleged persecutors targeted business
owners, and began targeting Elias-Vivas and his family only after they began their
businesses. Moreover, Elias-Vivas testified that the extortionists targeted anyone
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who had a business. Indeed, he also testified that the extortionists were harassing
him because they thought he had money from his car business.
2. Substantial evidence also supports the denial of Elias-Vivas’s CAT
application. An applicant for CAT protection has the burden of proving it is “more
likely than not” that he will be tortured with the acquiescence of a public official if
removed. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Maldonado v. Lynch, 786 F.3d
1155, 1162 (9th Cir. 2015). The acquiescence of a “public official requires that the
public official, prior to the activity constituting torture, have awareness of such
activity and thereafter breach his or her legal responsibility to intervene to prevent
such activity.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006)
(simplified).
The BIA adopted the IJ’s conclusion that Elias-Vivas failed to show that the
Guatemalan government would acquiesce or consent to his torture by private actors.
The IJ reasonably concluded that Elias-Vivas’s fear of future torture was speculative.
In addition, while the local police may have failed to prevent extortion against his
father, country report evidence shows that Guatemala has taken steps to investigate
and persecute those engaged in corrupt practices. See Del Cid Marroquin v. Lynch,
823 F.3d 933, 937 (9th Cir. 2016) (per curiam) (“[A] government does not
‘acquiesce’ to torture where the government actively, albeit not entirely successfully,
combats the illegal activities . . . .”) (simplified). Because the record does not compel
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a reasonable adjudicator to find that a government official would likely acquiesce to
Elias-Vivas’s possible future torture, substantial evidence supports the BIA’s
decision.
3. Even though Elias-Vivas made a passing reference to a due process
violation in his opening brief, he provided no argument supporting such a claim and,
therefore, it is forfeited. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.
1996) (“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
DENIED.
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