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Maldonado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 25, 2022
No. 18-70823 (9th Cir. Oct. 25, 2022)

Opinion

18-70823

10-25-2022

ROBERTO ACUNA MALDONADO, AKA Luis Enrique Leon Palomares, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 21, 2022 [**] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A201-172-537

Before: GOULD, WATFORD, and HURWITZ, Circuit Judges.

MEMORANDUM [*]

Luis Enrique Leon Palomares, also known as Roberto Acuna Maldonado, a citizen and native of Peru, seeks review of a Board of Immigration Appeals ("BIA") decision dismissing his appeal from an order of an Immigration Judge ("IJ") denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We dismiss the petition for lack of jurisdiction insofar as it challenges the BIA's holding that Leon did not establish an "extraordinary circumstance" exception to the one-year bar for asylum applications. We deny the petition as to Leon's claims for withholding of removal and CAT.

We have jurisdiction under 8 U.S.C. § 1252. "We review factual findings for substantial evidence; factual findings should be upheld unless the evidence compels a contrary result." Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016) (internal citations and quotations omitted). When the BIA issues its own decision but relies in part on the IJ's reasoning, as in this case, we "will review the IJ's decision to the extent incorporated." Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014).

1. The BIA held that Leon's asylum claim is barred because he did not apply within one year of his arrival and he did not demonstrate that an "extraordinary circumstance" caused the delay. See 8 U.S.C. § 1158(a)(2)(B), (D).

Leon claims that his application was delayed because he suffered from PTSD when he arrived in the United States in 2004, but whether the symptoms he described amounted to PTSD and whether the symptoms interfered with his ability to apply for asylum are disputed facts. We do not have jurisdiction to review "extraordinary circumstances" determinations that turned on the "resolution of an underlying factual dispute." Alquijay v. Garland, 40 F.4th 1099, 1103 (9th Cir. 2022) (internal citation and quotations omitted). Leon also claims that he was unaware of the law pertaining to asylum, but the "failure to act with diligence to determine applicable legal requirements" does not constitute an extraordinary circumstance. Id. at 1104. We therefore dismiss the petition insofar as it seeks review of the denial of the application for asylum.

2. In affirming the IJ's denial of withholding of removal, the BIA held that Leon did not demonstrate past persecution. That determination is supported by substantial evidence. In extreme cases "credible death threats alone can constitute persecution," but "only when the threats are so menacing as to cause significant actual suffering or harm." Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (internal citations and quotations omitted). Although Leon testified that he received threats from Sendero Luminoso, the record does not compel a finding that the threats were severe enough to rise to the level of past persecution.

Considering the threat of future persecution, the BIA held that Leon is not more likely than not to experience harm rising to the level of persecution if he returns to Peru. See 8 C.F.R. § 1208.16(b)(2). An applicant's "fear of future persecution is weakened, even undercut, when similarly-situated family members living in the [applicant's] home country are not harmed." Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (internal citations and quotations omitted) (emphasis in original). Further, "the age of the threats . . . that [Leon] received [is] relevant to our evaluation of the reasonableness of [his] fear." Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th Cir. 2006).

Leon left Peru in 1990 and he has two brothers who still live there unharmed. The record does not compel a finding that Leon met his burden showing it is more likely than not that he will suffer persecution if he returns. We deny Leon's claim for withholding of removal.

3. The BIA held that Leon did not demonstrate that it is more likely than not that he would be tortured in Peru. See 8 C.F.R. § 1208.16(c)(2). While the record indicates that Sendero Luminoso is a security threat generally in Peru, Leon has not met the high bar of demonstrating that he is personally more likely than not to suffer torture if returned to Peru. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (generalized evidence of crime and violence is not sufficient to establish eligibility for CAT). We deny Leon's CAT claim.

DISMISSED IN PART AND DENIED 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).


Summaries of

Maldonado v. Garland

United States Court of Appeals, Ninth Circuit
Oct 25, 2022
No. 18-70823 (9th Cir. Oct. 25, 2022)
Case details for

Maldonado v. Garland

Case Details

Full title:ROBERTO ACUNA MALDONADO, AKA Luis Enrique Leon Palomares, Petitioner, v…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 25, 2022

Citations

No. 18-70823 (9th Cir. Oct. 25, 2022)