Opinion
20-71631
10-20-2022
JULIA DIEGO-CANO; EULALIA BARNABE-DIEGO, AKA Agustin Barnabe-Ramirez, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 18, 2022 [**] Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A208-202-218 A208-202-219
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM [*]
Julia Diego-Cano and her minor daughter seek review of the Board of Immigration Appeals' (BIA) decision denying their claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
Diego-Cano and her minor daughter filed separate applications. Diego-Cano's counsel explained that they were not making separate claims, and that the daughter's application contained only her biographical information. Therefore, we construe the daughter's asylum application as derivative. There is no derivative eligibility for withholding of removal or CAT relief. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).
Where the BIA adopts and affirms an IJ's decision but also adds its own analysis, we review both decisions. J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020). "We review denials of asylum, withholding of removal, and CAT relief for substantial evidence." Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020). Under this standard, the agency's findings are treated as conclusive "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021).
1. Past Persecution.
Diego-Cano challenges the agency's determination that she did not establish past persecution. "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) (internal quotation marks omitted) (quoting Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)).
There is some question regarding whether we review past-persecution determinations de novo or for substantial evidence. See Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022). However, we need not reach that issue here because our conclusion would be the same under either standard.
Diego-Cano's claim stems from her community's resistance to a mining company's operations near her small town in Guatemala. Her community held frequent town meetings and organized protests. Diego-Cano sometimes attended the meetings along with her father-in-law who was a municipal leader in her town. Her father-in-law participated in one demonstration where he was shot at by the police. He was not injured and did not participate in any more demonstrations. Diego-Cano never participated in any protests or demonstrations. Diego-Cano testified that soldiers hired by the mining company came to her family's home one night and knocked on the door for 20 minutes before leaving. Since that night, the soldiers have not returned to her home or otherwise threatened or harmed her or her family.
This incident, involving at most an indirect threat and no physical harm, does not compel the conclusion that Diego-Cano was persecuted in Guatemala. See Sharma, 9 F.4th at 1062 ("Threats are relevant to the past persecution analysis. But mere threats, without more, do not necessarily compel a finding of past persecution." (alteration adopted; internal quotation marks and citation omitted)); see also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) ("[Threats] constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm." (internal quotation marks and citation omitted)).
2. Fear of Future Persecution.
Diego-Cano also argues that the agency erred in finding that she did not have a well-founded fear of future persecution. A "well-founded fear of persecution" means, in part, that there is a "reasonable possibility" of suffering persecution. 8 C.F.R. § 1208.13(b)(2)(i)(B). Diego-Cano's fear is too generalized and speculative. See Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir. 2003). Neither the soldiers nor the mining companies have returned to Diego-Cano's town since 2014. Diego-Cano was never harmed, and her father-inlaw continues to live in the same Guatemalan town without incident.
Because Diego-Cano cannot establish eligibility for asylum, she necessarily cannot meet the higher standard for withholding of removal. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
3. CAT Protection.
To establish eligibility for CAT protection, an applicant must show that it is more likely than not she would be tortured if removed. See 8 C.F.R. § 1208.16(c)(2). There is no evidence in the record compelling the conclusion that Diego-Cano is likely to be tortured if removed to Guatemala.
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).