Opinion
18-73110
10-26-2022
FRANCISCO ALVARADO-FLORES, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 21, 2022 Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A073-445-471
Before: R. NELSON, FORREST, and SUNG, Circuit Judges.
MEMORANDUM [*]
Petitioner Francisco Alvarado-Flores, a native of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a). We review the agency's factual findings for substantial evidence and its conclusions of law de novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). We dismiss the petition for review of the denial of asylum for lack of jurisdiction and deny the petition as to the BIA's denial of withholding of removal and CAT protection.
1. We lack jurisdiction to consider Alvarado-Flores's asylum eligibility. The IJ held that Alvarado-Flores's petition was untimely, and Alvarado-Flores failed to exhaust that issue before the BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). We therefore dismiss the petition for review as to Alvarado-Flores's asylum claim.
2. Substantial evidence supports the agency's denial of Alvarado-Flores's application for withholding of removal. "To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds." Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (citation omitted).
The only protected ground that Alvarado-Flores claimed was his membership in a social group comprised of his immediate family. See, e.g., Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018). After his parents' murder, Alvarado-Flores and his siblings moved to a different city in Mexico and lived there for five years before Alvarado-Flores came to the United States alone. The government elicited testimony that the rival family has never harmed Alvarado- Flores's four siblings, including two sisters who still live in Mexico-one of whom lives in the town where his parents were murdered. That evidence undermines Alvarado-Flores's claim that he has an objectively reasonable fear of persecution because of his family membership if he returns to Mexico. Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc) ("Where the claimed group membership is the family, a family member's continuing safety is an even more persuasive factor in considering a petitioner's well-founded fear."); Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001), superseded by statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) ("An applicant's claim of persecution upon return is weakened, even undercut, when similarly-situated family members continue to live in the country without incident[.]").
Further, although members of the rival family are still alive, there is no evidence that they remain interested in him three decades after his parents' murder. Alvarado-Flores himself testified that he did not "have any idea" what would happen to him in Mexico after so many years. Alvarado-Flores speculated that the rival family "might" think he would seek revenge for his father's death and kill him, but Alvarado-Flores presented no evidence to support that speculation.
The above evidence supports the agency's conclusion that, even if Alvarado- Flores established past persecution with a nexus to his family membership, the government nevertheless met its burden to show that it is no longer more likely than not that Alvarado-Flores will be persecuted if he is returned to Mexico. See Vallencillo-Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir. 1996). We therefore deny Alvarado-Flores's petition for review as to his claim for withholding of removal.
3. Substantial evidence supports the agency's denial of CAT relief. Because Alvarado-Flores failed to show a clear probability that he will be persecuted on return to Mexico, as discussed above, he cannot meet the higher threshold for showing a probability of torture. Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) ("Torture is 'more severe than persecution.'" (quoting Guo v. Sessions, 897 F.3d 1208, 1217 (9th Cir. 2018))).
Because substantial evidence supports the agency's denial of Alvarado-Flores's application for withholding of removal and CAT protection, we deny his petition for review as to those claims.
PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.
[*] 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).