Opinion
19-73019
10-20-2022
HEBER BARAHONA-LOPEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
NOT FOR PUBLICATION
Submitted October 18, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-603-938
Before: McKEOWN, CALLAHAN, and VANDYKE, Circuit Judges.
MEMORANDUM
Petitioner Heber Barahona-Lopez, a native and citizen of Honduras, seeks review of a Board of Immigration Appeals' (BIA) order dismissing his appeal of the Immigration Judge's (IJ) decision denying his request for relief from deportation under asylum, withholding of removal, and the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. The petition for review is denied.
The BIA adopted the reasoning and conclusions of the IJ, so we review both decisions. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We review the agency's factual findings under the highly deferential substantial evidence standard. Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021); Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Under substantial evidence, the agency's findings of fact are considered "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (citation omitted) (cleaned up).
To be eligible for asylum, Barahona-Lopez must show that he is a refugee because of a well-founded fear of persecution based on "race, religion, nationality, membership in a particular social group, or political opinion." See Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009) (quoting 8 U.S.C. § 1101(a)(42)(A)). Barahona-Lopez claims he fears persecution in Honduras on the basis of: (1) his cousin's fatal intervention in a 2012 assassination attempt on the cousin's employer; (2) subsequent anonymous threats directed at Barahona-Lopez's aunt; and (3) his alleged "anti-gang political opinion[s]." The agency concluded that the death of Barahona-Lopez's cousin was not past persecution, but an "unfortunate incident of being in a wrong place at a wrong time," and the record does not compel otherwise. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (clarifying that random violence is not persecution and bears "no nexus to a protected ground").
Likewise, the agency did not err in concluding that the subsequent messages sent to Barahona-Lopez's aunt also do not qualify as past persecution. General threats not specifically targeted at Barahona-Lopez are "unfulfilled threats" that can usually be considered "harassment rather than persecution." Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); see also Villegas Sanchez v. Garland, 990 F.3d 1173, 1179-80 (9th Cir. 2021) (finding "vague threats" do not necessarily rise to the level of "persecution").
Nor does the record compel a different conclusion than the agency's decision regarding risk of future persecution. The IJ was not clearly wrong in concluding that, after being gone from Honduras for (now over nine) years, "no one is looking for the respondent for any reason whatsoever." Moreover, the threats to his aunt ceased after the family moved to another part of Honduras, undermining Barahona-Lopez's claimed fear of future persecution, since his similarly situated family members continue to live in the country without reports of further threats or harm. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010).
Barahona-Lopez also argues that he is likely to be persecuted in the future because of imputed "anti-gang political opinion[s]." But he provides no evidence that he is associated with these opinions, especially because no one approached him about joining a gang. Without a well-founded fear of future persecution, Barahona-Lopez is ineligible for asylum.
For the same reasons, Barahona-Lopez's "withholding of removal" claim falls short. "A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is because of" race, religion, nationality, membership in a particular social group, or political opinion. Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (citation omitted) (cleaned up). Because the "list of reasons for which relief may be granted is identical for both asylum and withholding of removal," id., and as discussed, Barahona-Lopez has not established a threat of persecution based on any of these five categories, he is ineligible for withholding.
Finally, Barahona-Lopez's CAT claim fails because he cannot demonstrate that it is more likely than not that he will endure torture "with the consent" of a public official if he returns to Honduras. Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir. 2020) (quoting 8 C.F.R. § 1208.18(a)(1)). Barahona-Lopez has not experienced past torture, his similarly situated family members have successfully relocated to a different part of the country, and he presented no evidence of country conditions specific to his situation.
Accordingly, the petition for review is DENIED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).