Opinion
17-71606
11-09-2022
ANDY JAFET CASTILLO-SAGASTUME, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 7, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A202-189-758
Before: PARKER, [***] KOH, and SUNG, Circuit Judges.
MEMORANDUM [*]
Andy Castillo-Sagastume, a native of Honduras, petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming an order of an Immigration Judge ("IJ") denying 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 deny in part and dismiss in part the petition.
1. As to Castillo-Sagastume's asylum and withholding claims, the BIA correctly concluded that Castillo-Sagastume did not suffer past persecution.Persecution is an "extreme concept, marked by the infliction of suffering or harm in a way regarded as offensive." Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation marks and ellipses omitted). Castillo-Sagastume's young age is a "critical factor" in considering whether the mistreatment that he suffered at the hands of gang members who were trying to recruit him was severe enough to be considered persecution. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (citation omitted). Gang members pushed him and threw dirt in his face when he rejected their recruitment attempt. On another occasion, they tore his shirt and threatened to beat him up. Such mistreatment of children is indisputably condemnable. Nonetheless, that kind of physical abuse, coupled with a single threat (which was not a death threat) does not constitute persecution. See Rusak v. Holder, 734 F.3d 894, 895-96 (9th Cir. 2013) (physical abuse and harassment petitioner experienced as a child on account of her deafness was not persecution).
It is an open question as to whether de novo or substantial evidence review applies to past-persecution determinations. See Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022). We need not answer that question here because our conclusion would be the same under either standard.
Substantial evidence also supports the BIA's conclusion that Castillo-Sagastume did not establish a nexus between the harm he experienced and a protected ground. The record before us does not compel the conclusion that Castillo-Sagastume's status as a relative of his cousin was "one central reason" that the gang targeted him for recruitment, as required for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). Nor does the record compel the conclusion that his family relationship was "a reason" that he was targeted for recruitment, as required for withholding of removal. 8 U.S.C. § 1231(b)(3)(C). Rather, the evidence shows that child recruitment by gangs is a widespread and pervasive problem in Honduras.
2. Substantial evidence supports the BIA's determination that Castillo-Sagastume did not establish either a well-founded fear of future persecution (for his asylum claim) or a clear probability of future persecution (for his withholding claim). See Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) ("[E]ven a ten percent chance of persecution may establish a well-founded fear."); Aden v. Wilkinson, 989 F.3d 1073, 1085-86 (9th Cir. 2021) ("A clear probability exists if it is 'more likely than not' the person will be persecuted upon return." (citation omitted)). No objective evidence in the record indicates that the gang would be interested in Castillo-Sagastume now, nearly ten years later, or that he would be vulnerable to their recruitment efforts now that he is nearly twenty years old. See Lanza v. Ashcroft, 389 F.3d 917, 934-35 (9th Cir. 2004) (holding that "[t]here is no reason in the record to warrant a belief that [petitioner's] alleged persecutors would still be interested in her" where the "alleged persecution occurred more than ten years ago"). Any possibility that the gang is still interested in Castillo-Sagastume is too speculative. See, e.g., Sharma v. Garland, 9 F.4th 1052, 1065 (9th Cir. 2021). The fact that Castillo-Sagastume's brother continues to reside in Honduras unharmed also supports the BIA's conclusion. See id. at 1066 ("The ongoing safety of family members in the petitioner's native country undermines a reasonable fear of future persecution.").
3. We lack jurisdiction to consider Castillo-Sagastume's newly proposed social group of "Honduran males, who support the rule of law, refuse participation with the 'Gang' criminal organizations and refuse to pay the criminal organizations money," because he failed to exhaust that social group before the agency. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084 (9th Cir. 2020) ("[A] petitioner must delineate his or her proposed social group before the IJ, and may not reframe the group on appeal." (citing Matter of W-Y-C- &H-O-B-, 27 I. &N. Dec. 189, 19192 (BIA 2018))); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (holding that a failure to exhaust "generally bars us, for lack of subject-matter jurisdiction, from reaching the merits of a legal claim not presented in administrative proceedings below").
4. Substantial evidence supports the BIA's denial of Castillo-Sagastume's CAT claim. Because Castillo-Sagastume failed to show a clear probability that he will be persecuted if returned to Honduras, he cannot meet the higher threshold for showing a probability of torture. See 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))).
PETITION DENIED IN PART, DISMISSED 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).
[***] The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.