Caniz Tax v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OSVALDO ALEXANDER CANIZ TAX, No. 22-714 Agency No. Petitioner, A208-584-322 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 10, 2023** Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges. Osvaldo Alexander Caniz Tax, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We * 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). have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We deny the petition for review. We do not disturb the agency’s determination that Caniz Tax failed to establish he suffered harm that rises to the level of persecution. See Duran- Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (threats alone rarely constitute persecution); see also Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022) (court need not resolve whether de novo or substantial evidence review applies, where result would be the same under either standard). Substantial evidence supports the conclusion that Caniz Tax failed to establish a reasonable possibility of future persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too speculative”). Thus, Caniz Tax’s asylum claim fails. Because Caniz Tax failed to establish eligibility for asylum, he failed to satisfy the standard for withholding of removal. See Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021). Substantial evidence also supports the agency’s denial of CAT protection because Caniz Tax failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 2 22-714  We decline to reach Caniz Tax’s contentions that were raised for the first time in his reply brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (“Issues raised for the first time in the reply brief are waived.”). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 3 22-714