Opinion
18-71212
10-26-2022
EMIDIO MACIAS CANALES, AKA Emidio Macias, 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NOT FOR PUBLICATION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. A029-956-163
Before: OWENS and MILLER, Circuit Judges, and EZRA, [***] District Judge.
MEMORANDUM [*]
Emidio Macias Canales ("Petitioner"), a native of Honduras, petitions for review of the Immigration Judge's ("IJ") decision affirming the Department of Homeland Security asylum officer's ("AO") reinstatement of Petitioner's prior order of removal. See 8 U.S.C. § 1231(a)(5). Petitioner argues that he presented the IJ with evidence sufficient to compel a finding of a reasonable possibility of persecution based on a protected ground or a reasonable possibility of torture, therefore preventing the reinstatement of his removal order. Alternatively, Petitioner alleges he was denied due process, because the IJ did not reference specific evidence in her written decision and used the wrong legal standard. We deny the petition for review.
This inquiry is known as a reasonable fear determination. 8 C.F.R. § 1208.31(g).
1. We have jurisdiction to review the IJ's negative reasonable fear determination under 8 U.S.C. § 1252. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). We review for substantial evidence the factual findings underlying the IJ's reasonable fear determination. Id. We must uphold the IJ's conclusion that Petitioner did not establish a reasonable fear of torture or persecution "unless, based on the evidence, 'any reasonable adjudicator would be compelled to conclude to the contrary. '" Id. (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). Questions of law and due process concerns are reviewed de novo. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014).
2. Petitioner fears harm from a Honduran man named Franklin who threatened him in California eighteen years ago for refusing to rent him a room. Petitioner tries to frame his fear of Franklin as a reasonable possibility of persecution based on family membership. He points to his testimony that Franklin shot three or four individuals in Honduras and that Franklin aimed a gun at Petitioner's brother four or five years ago. But Petitioner's effort to paint his personal dispute with Franklin as persecution based on family membership falls flat. Petitioner produced no evidence that Franklin ever physically harmed Petitioner's family members. In fact, Petitioner testified to the AO and the IJ that two of Franklin's three or four shooting victims were his own cousin and his own uncle, not Petitioner's family. Petitioner also testified that he and his brother have no idea why Franklin pointed a gun at Petitioner's brother. As the IJ noted at the end of the reasonable fear review proceeding, a "personal vendetta . . . does not constitute an enumerated ground, nor is it a particular social group." See Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir. 2011) (holding that a personal dispute, standing alone, does not constitute persecution based on a protected ground). Accordingly, Petitioner's allegations about Franklin do not compel a contrary result to the IJ's conclusion that Petitioner fears persecution based on a personal dispute with Franklin rather than the protected ground of family membership.
Petitioner next argues that the IJ erred by affirming the AO's finding of no reasonable possibility of torture by or with the acquiescence of a public official or government. A reasonable possibility of torture in the country of removal requires a showing that the applicant "would be subject to a particularized threat of torture" if removed, Dihal v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted), "by, or at the instigation of, or with the consent or acquiescence of, a public official . . . or other person acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). Petitioner did not provide compelling evidence of either requirement. Petitioner testified that Franklin is a "gang member and has already killed many people" and the police in Honduras "pay more attention to the gang members than to other civilians." However, a "general ineffectiveness on the government's part to investigate and prevent crime will not suffice to show acquiescence." Andrade-Garcia, 828 F.3d at 836. Petitioner's nonspecific testimony that Franklin is a gang member and that the Honduran government "is corrupted" does not compel the conclusion that the government would acquiesce to future harm caused by Franklin.
3. Next, Petitioner suggests that his due process rights were violated because the IJ's decision made no reference to any specific evidence. We rejected an analogous due process challenge in Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir. 2018), holding that reasonable fear review decisions need not "address all of the evidence and claims specifically" to satisfy due process. As in Bartolome, there is "no basis to assume that the IJ failed to consider the evidence before [her]" in this case, since the IJ allowed Petitioner to testify during the reasonable fear review hearing, "noted that [she] considered all of the evidence" in her written decision, and addressed specific facts on the record at the end of the review proceeding. Id. at 814. Petitioner's due process claim is foreclosed by the logic articulated in Bartolome.
4. Lastly, Petitioner contends that the IJ violated his due process rights by applying the "more likely than not" standard, rather than the correct "reasonable possibility" standard, when evaluating the likelihood of persecution and torture. See 8 C.F.R. § 208.31(c). Despite briefly articulating the incorrect standard at the end of the reasonable fear review hearing, the IJ seems to have applied the correct standard. She articulated the correct reasonable possibility standard in her written decision affirming the AO's finding of no reasonable fear, used language indicating her reliance on the reasonable possibility standard throughout the hearing, and affirmed the AO's decision, which was based on the correct legal standard. Accordingly, Petitioner failed to demonstrate that he was denied due process, since the IJ seems to have applied the correct legal standard to his claims.
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, United States District Judge for the District of Hawaii, sitting by designation.