Opinion
18-71755
11-15-2022
ISELA VIRIDIANA MENDOZA MUNOZ, AKA Isela Viridiana De La Cruz; et al., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 21, 2022 [**] Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A206-908-616 A206-432-500 A206-908-617 A206-908-618
Before: R. NELSON, FORREST, and SUNG, Circuit Judges.
MEMORANDUM [*]
Uriel De La Cruz Rodriguez, Isela Viridiana Mendoza Munoz, and their two minor sons (collectively Petitioners) seek review of the Board of Immigration Appeals' (BIA) final order denying their claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We review these decisions by the BIA for substantial evidence. Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Past persecution.
Petitioners challenge the agency's determination that they did not suffer past persecution. "Unfulfilled threats are very rarely sufficient to rise to the level of persecution." Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021). We are "most likely to find persecution where threats are repeated, specific and combined with confrontation or other mistreatment." Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (internal quotation marks and citations omitted).
There 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.
Petitioners' claims stem from a single encounter that De La Cruz Rodriguez and his brother had with members of a cartel in 2014. The cartel members coerced De La Cruz Rodriguez and his brother to work without pay and then threatened the brothers to keep silent or their families would be killed. De La Cruz Rodriguez and his brother did not report the incident and have had no additional encounters with the cartel.
That single unfulfilled threat of harm does not compel the conclusion that Petitioners suffered past persecution. See Duran-Rodriguez, 918 F.3d at 1027-28 (evidence of a threat by seven armed "hitmen" did not compel the conclusion that petitioner suffered past persecution).
2. Reasonable fear of future persecution.
Petitioners also challenge the agency's conclusion that they did not establish a well-founded fear of future persecution. Again, substantial evidence supports the agency's decision. Since the aforementioned incident, neither De La Cruz Rodriguez's brother nor Petitioners have been contacted or harmed by the cartel. And there is no evidence that the cartel is searching for Petitioners or their family. Those circumstances do not "compel a finding of even a ten percent chance of persecution." Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009).
3. Withholding of removal.
Because Petitioners cannot establish that they have a well-founded fear of future persecution for asylum eligibility, they necessarily cannot meet the greater burden of establishing eligibility for withholding of removal. See Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).
4. CAT claim.
Lastly, Petitioners challenge the agency's denial of CAT protection. Applicants for CAT relief must show that it is more likely than not that they will be tortured if removed. See 8 C.F.R. § 1208.16(c)(2). Because Petitioners failed to show a clear probability that they will be persecuted on return to Mexico, they cannot meet the higher threshold for showing a probability of torture. 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.
[*] 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).