Opinion
19-70117
10-28-2022
JESUS EDUARDO MARADIAGA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 17, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-514-040
Before: S.R. THOMAS and M. SMITH, Circuit Judges, and WU, [***] District Judge.
MEMORANDUM [*]
Jesus Eduardo Maradiaga, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an Immigration Judge's ("IJ") determination that he was not eligible for asylum and the IJ's denial of his applications for withholding of removal and protection under the Convention Against Torture ("CAT"). We have jurisdiction pursuant to 8 U.S.C. § 1252. "We review questions of law de novo and factual determinations for substantial evidence." Amaya v. Garland, 15 F.4th 976, 986 (9th Cir. 2021).
Although the petition for review and the parties' briefs to this court use "Jesus Eduardo Maradiaga," the administrative filings and Petitioner's testimony before the IJ indicate that his name is "Jose Eduardo Maradiaga."
To be eligible for asylum, Maradiaga must establish that he is a "refugee" -namely, that he is unable or unwilling to return to Honduras "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see Parada v. Sessions, 902 F.3d 901, 909 (9th Cir. 2018). To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), he must establish a clear probability that his life or freedom would be threatened upon return to Honduras because of one or more of the aforementioned grounds. See Ahmed v. Keisler, 504 F.3d 1183, 1199 (9th Cir. 2007). For asylum, a protected ground must be "at least one central reason" for the claimed persecution. See 8 U.S.C. § 1158(b)(1)(B)(i); Kaur v. Garland, 2 F.4th 823, 834 (9th Cir. 2021). For withholding of removal, a protected ground need only be "a reason" for the claimed persecution. See Barajas-Romero v. Lynch, 846 F.3d 351, 359-60 (9th Cir. 2017).
Substantial evidence supports the BIA's conclusion that Maradiaga failed to establish the requisite nexus between his claimed persecution (harm from a gang member) and a protected ground (membership in the particular social group of Maradiaga's family). Nothing in the record compels the conclusion that Maradiaga has anything but (1) a generalized fear of violence in Honduras and/or (2) a fear of individualized retaliation from the man who murdered Maradiaga's father and subsequently served a prison sentence for the crime. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (noting that a generalized fear of gang violence in the alien's home country, without more, is insufficient to qualify the alien for asylum or withholding of removal); Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (noting that "mistreatment motivated purely by personal retribution will not give rise to a valid asylum claim"); cf. Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir. 2011) ("Rather than demonstrating that Ayala was persecuted on account of his membership in a particular social group, the evidence demonstrates that Ayala was only shot at and threatened because, while an officer, he had arrested a particular drug dealer. Though disturbing, this type of persecution is not cognizable under the INA."). Neither of Maradiaga's fears compel the conclusion that Maradiaga's membership in his family is "one central reason" or even "a reason" for the purported persecution, which would be necessary - respectively - in the contexts of a grant of asylum or withholding of removal. See Ayala, 640 F.3d at 1098.
As to Maradiaga's application for protection under the CAT, he is required to establish that "it is more likely than not that he . . . would be tortured if removed to the proposed country of removal," 8 C.F.R. § 1208.16(c)(2), and such torture would be "inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity," Id. § 1208.18(a)(1). See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).
Here, the record does not compel the conclusion that it is "more likely than not" that Maradiaga will be tortured upon his return to Honduras. Maradiaga primarily presents only generalized evidence about violence and gangs in Honduras, and thus "[i]n terms of future torture, [Maradiaga] has not shown a greater risk to him than any other [Honduran] national deported from the United States such that torture would be 'more likely than not' in his case." Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019). Moreover, Maradiaga presents neither evidence nor argument that Honduran public officials have acquiesced to his torture. Indeed, given that the man who threatened him and killed his father was prosecuted, sentenced to 18 years, and imprisoned by the state, it is plain that Honduran officials fulfilled "their legal responsibility to intervene to prevent the activity." Garcia-Milian, 755 F.3d at 1034.
While Maradiaga argues that the BIA failed to provide a thorough and reasoned analysis of the evidence, "[t]here is no indication that the IJ or BIA did not consider all the [relevant] evidence before them ....[and while] the . . . BIA could have elaborated in [its] respective decision[], there is no indication of misstating the record or of the [BIA's] failing to mention critical evidence." Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 894 (9th Cir. 2018).
Finally, Maradiaga introduces (but fails to present any actual discussion of) a third issue identified in the "Statement of Issues Presented" portion of his brief to this court regarding the purported untimely filing of his request for asylum - an issue he conceded before the IJ. Because Maradiaga failed to argue this matter in his brief, we need not address it. See Tovar v. Zuchowski, 950 F.3d 581, 593 (9th Cir. 2020).
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 concluded that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
[***] The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.