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Castro-Donado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 18-71626 (9th Cir. Oct. 19, 2022)

Opinion

18-71626

10-19-2022

JHON CASTRO-DONADO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 17, 2022 Seattle, Washington

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208-558-313

Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.

MEMORANDUM [*]

Petitioner Jhon Jairo Castro-Donado seeks review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). The BIA dismissed Petitioner's appeal of the Immigration Judge's ("IJ") order denying Petitioner's applications for asylum and withholding of removal under the Immigration and Nationality Act and protection pursuant to the Convention Against Torture ("CAT"). We have jurisdiction pursuant to 8 U.S.C. § 1252, Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017), and we deny the petition.

We review factual findings for substantial evidence. Id. (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)). "[T]o reverse such a finding, we must find that the evidence not only supports a contrary conclusion but compels it." Id. (cleaned up). And where the BIA adopts the IJ's decision, we review the IJ's decision as if it were the decision of the BIA. Deloso v. Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005).

1. The BIA affirmed the IJ's denial of Petitioners' asylum and withholding of removal claims because Castro-Donado did not establish past persecution or a well-founded fear of future persecution on account of a protected ground under 8 U.S.C. § 1101(a)(42)(A). We agree.

Castro-Donado claims that he suffered past persecution on account of his political opinions and opposition to gang violence. Substantial evidence supports the IJ's determination that none of Castro-Donado's allegations-separately or collectively-rise to the level of persecution. In Venezuela, Castro-Donado only received two phone calls and a visit to his former workplace that he alleges were threatening-he was not physically harmed, nor was any member of his family. Additionally, the record lacks any evidence that the phone calls Castro-Donado received were from paramilitary forces or were connected to any political activity. In El Salvador, there is no evidence supporting that Castro-Donado was attacked because of any political or anti-gang position. Without more, these vague accusations do not compel a finding of persecution. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Similarly, mere economic disadvantage does not constitute economic persecution. Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004).

Nor does the record support a finding of future persecution. Castro-Donado is not affiliated with any political party and conceded that no one would be able to find his name on any political party registration lists. His political activism is limited to a small number of marches that he attended with thousands of others; his partner and three children have remained unharmed in Venezuela; and he proffered no evidence that he would be sought out or attacked again in either Venezuela or El Salvador where he successfully relocated.

2. Castro-Donado also claims the BIA erred in affirming that no sufficient nexus existed between the attack in El Salvador and his membership in the social group of El Salvadorian residents "who have opposed gang violence." We disagree.

The nexus standard requires a showing of the persecutor's motive. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). The basic motive element requires that the persecutor know or believe that the victim has the protected characteristic, and that knowledge or belief was at least one central reason that he committed the acts in question. See Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009). The record does not support that the individuals who questioned and attacked Castro-Donado did so for any specific reason-let alone that Castro-Donado was a member of a rival gang or opposed gang violence. Castro-Donado's suspicions, without more, do not establish a sufficient nexus. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). The BIA correctly affirmed that "those in El Salvador who have opposed gang violence" is not a cognizable social group because it is amorphous and includes "practically every Salvadoran who is not a gang member."

3. Because Castro-Donado cannot compel the determination that he is eligible for asylum, he also cannot establish eligibility for the higher standard of withholding of removal. Wang, 861 F.3d at 1009.

4. Castro-Donado also challenges the BIA's denial of his CAT claim. Relief under CAT requires a showing that an alien will (1) more likely than not be tortured in the country of removal and (2) "that the torture would be inflicted with government acquiescence." Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022); 8 C.F.R. § 208.16(c)(4). There is no record evidence that Castro-Donado will be tortured upon removal and no evidence suggesting that the Venezuelan or El Salvadorian governments will single out Castro-Donado for harm on account of his political opinions or otherwise. Castro-Donado is thus not eligible for CAT relief.

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).


Summaries of

Castro-Donado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 18-71626 (9th Cir. Oct. 19, 2022)
Case details for

Castro-Donado v. Garland

Case Details

Full title:JHON CASTRO-DONADO, Petitioner, v. MERRICK B. GARLAND, Attorney General…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 19, 2022

Citations

No. 18-71626 (9th Cir. Oct. 19, 2022)