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Alvarado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 6, 2022
No. 19-70007 (9th Cir. Oct. 6, 2022)

Opinion

19-70007

10-06-2022

OSCAR RENE ALVARADO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 3, 2022 [**] Portland, Oregon

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A73-944-357

Before: OWENS and MILLER, Circuit Judges, and EZRA, [***] Senior District Judge for the District of Hawaii.

MEMORANDUM [*]

Oscar Rene Alvarado ("Alvarado"), a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal of an Immigration Judge's ("IJ") decision denying his applications for withholding of removal and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. As the parties are familiar with the facts, we do not recount them here. We deny the petition.

"Where the BIA writes its own decision, as it did here, we review the BIA's decision, except to the extent it expressly adopts the IJ's decision." Diaz-Reynoso v. Barr, 968 F.3d 1070, 1075-76 (9th Cir. 2020). Factual determinations are reviewed for substantial evidence and "should be upheld unless the evidence compels a contrary result." Id. at 1076 (citation and internal quotation marks omitted).

1. Substantial evidence supports the BIA's denial of withholding of removal. To qualify for withholding of removal, "the applicant must demonstrate that it is 'more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon removal to [the country in question].'" Silva v. Garland, 993 F.3d 705, 719 (9th Cir. 2021) (quoting 8 C.F.R. § 1208.16(b)(2)). Alvarado contends that he was harmed because of his political opinion and that he and his sister were harmed because of membership in the particular social group of their family, but he did not establish that the past instances of harm were "on account of" these protected grounds. For example, regarding his kidnapping by gang members in 2005, Alvarado testified that the gang members "always talked about . . . what they just needed was money." While Alvarado suffered harm from these gang members, he failed to show nexus to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) ("An [applicant's] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground."). In addition, Alvarado stated that when he and a few friends from university were detained and beaten by the police in 1987, police targeted them because "[they] looked suspicious simply because [they] had university backpacks on" rather than because of his political opinion or his family. While withholding claims require only that a protected ground be "a reason" for the harm, see Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017), substantial evidence supports the BIA's determination that Alvarado failed to show that the past harm occurred based on nexus to a protected ground, or that he has a well-founded fear of future persecution based on nexus to a protected ground.

This court's "review is limited to those grounds explicitly relied upon by the BIA." Romero v. Garland, 7 F.4th 838, 840 (9th Cir. 2021) (per curiam) (citation omitted). The BIA explicitly did not reach the issues of whether Alvarado's past convictions constitute a "particularly serious crime" precluding him from withholding and whether Alvarado's past harms amount to persecution. We therefore cannot address either of those issues.

2. Substantial evidence also supports the BIA's determination that Alvarado did not show the required elements of a CAT claim: that he is more likely than not to be tortured if returned to El Salvador and that the torture would occur by or with the acquiescence of a public official. Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). When the gang members released Alvarado, they threatened that "if [he] would come back that [he] would have to pay the consequences" and that "they could kill [him]." This threat, along with the harm those gang members inflicted, establishes some likelihood that Alvarado will be harmed by gang members in the future but does not compel the conclusion that he will more likely than not be tortured. And while Alvarado submitted country conditions reports in support of his assertion that he feared that future torture by gang members would occur with governmental acquiescence, the evidence of generalized violence in El Salvador does not sufficiently show that the violence occurs with governmental acquiescence. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) ("[G]eneral ineffectiveness on the government's part to investigate and prevent crime will not suffice to show acquiescence.").

PETITION DENIED.

[*] 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 David A. Ezra, Senior District Judge for the District of Hawaii, sitting by designation.


Summaries of

Alvarado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 6, 2022
No. 19-70007 (9th Cir. Oct. 6, 2022)
Case details for

Alvarado v. Garland

Case Details

Full title:OSCAR RENE ALVARADO, Petitioner, v. MERRICK B. GARLAND, Attorney General…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 6, 2022

Citations

No. 19-70007 (9th Cir. Oct. 6, 2022)