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Zambrano v. Garland

United States Court of Appeals, Ninth Circuit
Oct 25, 2022
No. 18-72423 (9th Cir. Oct. 25, 2022)

Opinion

18-72423

10-25-2022

MARIA GUADALUPE ALVAREZ ZAMBRANO; NELSON ALEXIS CUEVAS ALVAREZ ZAMBRANO; MARIO JESUS CUEVAS ALVAREZ ZAMBRANO; MIRANDA GUADALUPE CUEVAS ALVAREZ ZAMBRANO, 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NOT FOR PUBLICATION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. A208-310-692, A208-310-693, A208-310-694, A208-310-695

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

MEMORANDUM [*]

Maria Guadalupe Alvarez Zambrano (Alvarez Zambrano) and her minor children seek review of the Board of Immigration Appeals' (BIA) decision affirming denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). "We review denials of asylum, withholding of removal, and CAT relief for substantial evidence...." See Aguilar Fermin v. Barr, 958 F.3d 887, 891-92 (9th Cir. 2020) (citation omitted). Where the BIA affirms an Immigration Judge's (IJ) order without opinion, the IJ's order is reviewed as the final agency action. See Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir. 2004). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

Alvarez Zambrano's minor children were derivative applicants of her asylum application. 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).

1. Past persecution determination. Alvarez Zambrano challenges the IJ's determination that she did not establish past persecution. Threats do not necessarily compel a finding of past persecution. Sharma v. Garland, 9 F.4th 1052, 1062 (9th Cir. 2021). Rather, "[w]e have been 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).

We recognize that there is an open question as to whether de novo or substantial evidence review applies to past-persecution determinations; however, we need not reach that question as our conclusion would be the same under either standard. See Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022).

Alvarez Zambrano, an activist for the Green Party, claims that after the candidate that she supported lost the 2015 election for president of her municipality, trucks full of armed and masked supporters of the winning candidate came to her and her ex-partner's home. The men threatened Alvarez-Zambrano and her family that they would be killed if they did not leave town or pay a monthly fee and have her ex-partner join their party. The armed men stayed outside of Alvarez Zambrano's house for two or three days. Shortly after they left, Alvarez Zambrano and her family fled.

This single incident, involving no physical harm, does not rise to the level of persecution. See, e.g., Duran-Rodriguez, 918 F.3d at 1027-28 (affirming agency's finding of no past persecution where petitioner was threatened by seven armed "hitmen" that he could either cooperate, leave the city, or be killed).

2. Reasonable fear of future persecution. Alvarez Zambrano also challenges the IJ's conclusion that she did not establish a well-founded fear of future persecution based upon her support of the Green Party.

Alvarez-Zambrano's ex-partner, who was also an active Green Party supporter, remained in Mexico and lives in a city just two hours away from the town he and Alvarez-Zambrano fled. Likewise, the unsuccessful Green Party candidate whom Alvarez Zambrano supported lives in that same nearby city and returns without harm to the town where Alvarez Zambrano lived to attend to his mining business. Alvarez Zambrano did not identify a single individual who was harmed for supporting the Green Party since the 2015 election. This record supports the IJ's conclusion that Alvarez Zambrano did not establish a reasonable fear of future persecution. See 8 C.F.R. § 1208.13(b)(2)(i)(B).

The IJ also commented on the reasonableness of Alvarez Zambrano relocating within Mexico. The IJ's determination regarding reasonable relocation (if that was his intent) was unnecessary to the removal outcome. Accordingly, we need not consider whether the IJ erred on this front.

Because Alvarez Zambrano cannot establish eligibility for asylum, she necessarily cannot meet the greater burden of establishing eligibility for withholding of removal. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).

3. CAT claim. Lastly, Alvarez Zambrano challenges the IJ's denial of her CAT claim because she lacks a reasonable fear of torture. To establish eligibility for protection under CAT, an applicant must show that it is more likely than not she would be tortured if returned to the proposed country of removal. See 8 C.F.R. § 1208.16(c)(2). There is no evidence in the record compelling the conclusion that Alvarez Zambrano is more likely than not to be tortured if returned to Mexico.

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

Zambrano v. Garland

United States Court of Appeals, Ninth Circuit
Oct 25, 2022
No. 18-72423 (9th Cir. Oct. 25, 2022)
Case details for

Zambrano v. Garland

Case Details

Full title:MARIA GUADALUPE ALVAREZ ZAMBRANO; NELSON ALEXIS CUEVAS ALVAREZ ZAMBRANO…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 25, 2022

Citations

No. 18-72423 (9th Cir. Oct. 25, 2022)