Opinion
23-4258
12-04-2024
KEYLI SAMARA CASTEJON RIOS; BRANDO ALEJANDRO MEJIA CASTEJON, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted December 2, 2024 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. A220-590-728, A220-149-605
Before: GOULD, CLIFTON, and SANCHEZ, Circuit Judges.
MEMORANDUM [*]
Keyli Samara Castejon Rios and her minor son, Brandon Alejandro Mejia Castejon, both citizens of Honduras, petition for review of the Board of Immigration Appeals' ("BIA") dismissal of their appeals of an Immigration Judge's ("IJ") denial of their applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
When the BIA adopts the IJ's decision citing Matter of Burbano, 20 I. &N. Dec. 872 (BIA 1994), as it did here, this court reviews the IJ's order as if it were the BIA's. Abebe v. Gonzales, 432 F.3d 1037, 1040-41 (9th Cir. 2005) (en banc). Legal conclusions are reviewed de novo. Id. at 1040. Factual findings-such as the social distinction of a protected social group ("PSG") or a persecutor's motivation-are reviewed for substantial evidence. Id. at 1039-40. Under the substantial evidence standard, the petitioner "must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous." Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020) (internal quotation marks omitted). Because the IJ found Castejon Rios to be a credible witness, her allegations are assumed to be true. See Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir. 2009).
1. An applicant bears the burden of proving that she is eligible for asylum. 8 C.F.R. § 208.13(a). Castejon Rios did not show three necessary elements for establishing asylum: (1) persecution (2) on account of one or more protected grounds, by (3) either the government or forces the government was unable or unwilling to control. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).
Persecution is an "extreme concept that means something considerably more than discrimination or harassment." Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This court has applied both the substantial evidence and de novo standards of review to BIA findings of persecution. See Singh v. Garland, 57 F.4th 643, 651-52 (9th Cir. 2023). Even under the less deferential standard, Castejon Rios does not meet her statutorily required burden. First, she does not establish that past persecution occurred. Over the course of four years, Castejon Rios received several death threats from Honduran gangs who believed her husband to be affiliated with MS 13, but these threats were never acted upon. Castejon Rios argues that the "confrontation" and "intimidation tactics" that accompanied these threats are what establishes persecution, but she provides no additional details. The evidence does not compel the conclusion that her threats rose to the level of past persecution. See Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2003) ("Unfulfilled threats are very rarely sufficient to rise to the level of persecution.").
Second, Castejon Rios does not show a well-founded fear of future persecution. To do so, an applicant must first establish that it is unreasonable for her to relocate, "unless the persecution is by a government or is government-sponsored." 8 C.F.R. § 1208.13(b). Although Castejon Rios claims that relocation within Honduras is "not possible" because a new neighborhood might be controlled by a rival gang, she does not cite to any evidence that supports this assertion.
Next, we turn to Petitioner's proposed PSGs and the nexus between those groups and the harm she suffered. Once a social group is found to be cognizable, an applicant for asylum must show that persecution was on account of membership in that group. See Ayala v. Holder, 640 F.3d 1095, 1097-98 (9th Cir. 2011) (per curiam). A persecutor may have multiple motivations for inflicting harm, but a protected ground must be "one central reason" for her persecution. 8 U.S.C. § 1158(b)(1)(B)(i).
Castejon Rios asserts that she is a member of two PSGs: "Honduran women living in a gang-controlled area with affiliations to men with ties or perceived ties to a rival gang" and the "nuclear family of [her husband] Jaime Efrain Mejia." The IJ reasonably found that neither group had the social distinction and particularity required for a cognizable PSG, and Petitioner does not offer any evidence that compels this court to find otherwise. But even if Castejon Rios did establish a cognizable PSG, she does not establish a nexus between the proffered groups and the harm she endured.
Here, the IJ reasonably found that the gangs were motivated by criminal self-interest, relying on the fact the gangs accompanied their threats with extortion or requests for information about the locations of drugs and rival gang members. Castejon Rios did not offer convincing alternative reasons for the threats: she does not cite to, or even provide, facts that indicate a different nexus. Furthermore, the record indicates that her family-including her husband, who's gang affiliation is at the root of Petitioner's entire claim-remains unharmed in Honduras, further undercutting her claims of persecution because of kinship or affiliation.
Finally, the IJ reasonably found that while the record "demonstrates Honduran law enforcement suffers from inadequate resources and . . . corruption," it also shows that the government "actively sought out" narcotraffickers, as evidenced by the targeting of David Campbell, Castejon Rios's husband's former employer and a major supplier of MS 13's drugs and guns. It further supports its finding by pointing to the fact that Castejon Rios reported a threat to the police, and they "took [her] complaint." Castejon Rios's assertion that it is "common knowledge in Honduras" that the authorities are unable to control the gangs is not enough to compel this court to find otherwise. Petitioner did not show that the Honduran government is unwilling or unable to control the gangs threatening her.
Castejon Rios fails to show persecution on account of a protected ground by forces the Honduran government was unable to control. Her petition to review her asylum claim is denied.
2. To be eligible for withholding of removal, a petitioner must show a "clear probability" of persecution. Sharma, 9 F.4th at 1059 (citing Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003)). The persecution standard for withholding of removal is "more stringent" than the standard for asylum. Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021). Therefore, an applicant who fails to satisfy the persecution standard for asylum necessarily fails to satisfy the more demanding standard for withholding of removal. Davila, 968 F.3d at 1142. Because Petitioner did not show persecution under the asylum standard, her petition to review her withholding of removal claim is denied.
3. A CAT petitioner must show it is more likely than not that she would be tortured-with the consent of public officials-if removed. 8 C.F.R. §§ 1208.l6(c)(2), 1208.18(a)(1). "Torture is more severe than persecution." Davila, 968 F.3d at 1144 (citation omitted). Because Castejon Rios did not show persecution under the asylum standard, her petition to review her CAT claim is denied.
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).