Garcia-Bustamante v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YOSMARI GARCIA- No. 23-4057 BUSTAMANTE; JUAN OSORIO- Agency Nos. GARCIA, A220-585-520 A220-585-521 Petitioners, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 6, 2024** San Francisco, California Before: BRESS and FORREST, Circuit Judges, and OHTA, District Judge.*** Yosmari Garcia-Bustamante and her minor child, natives and citizens of * 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). *** The Honorable Jinsook Ohta, United States District Judge for the Southern District of California, sitting by designation. Honduras (collectively, Garcia-Bustamante), petition for review of a Board of Immigration Appeals (BIA) decision dismissing their appeal of an immigration judge (IJ) order denying Garcia-Bustamante’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Garcia- Bustamante’s son is a derivative applicant on her request for asylum. We review the denials of asylum, withholding of removal, and CAT relief for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060, 1066 (9th Cir. 2021). “Under this standard, we must uphold the agency determination unless the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). When the BIA, as here, references the IJ’s decision, we consider both decisions. Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. “To be eligible for asylum, a petitioner has the burden to demonstrate a likelihood of ‘persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” Sharma, 9 F.4th at 1059 (quoting 8 U.S.C. § 1101(a)(42)(A)). For withholding of removal, Garcia-Bustamante must show “that it is more likely than not” that she will be persecuted if returned to Honduras “because of” membership in a particular social group or other protected ground. Barajas-Romero v. Lynch, 846 F.3d 351, 357, 360 (9th Cir. 2017); see 8 U.S.C. § 1231(b)(3)(A). 2 23-4057  Substantial evidence supports the agency’s conclusion that Garcia- Bustamante did not experience past harm rising to the level of persecution. “‘Persecution,’ we have repeatedly held, ‘is an extreme concept that means something considerably more than discrimination or harassment.’” Sharma, 9 F.4th at 1060 (quoting Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th Cir. 2009)). Garcia- Bustamante did not experience physical violence in Honduras. See id. at 1061 (reasoning that in determining past persecution, “[t]he first, and often a significant consideration, is whether the petitioner was subject to ‘significant physical violence’”) (quoting Nagoulko v. INS, 333 F.3d 1012, 1016–17 (9th Cir. 2003)). Nor did she receive any direct threats. The killing of Garcia-Bustamante’s husband’s cousin Walter and the threats made to Walter’s niece do not show that Garcia- Bustamante experienced past persecution. And while Garcia-Bustamante unfortunately experienced difficulties in Honduras due to her health conditions and generalized fear of violence, these circumstances do not demonstrate past persecution. See id. (noting that “not all negative treatment equates with persecution”) (quoting Lanza v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004)). Absent a presumption of a well-founded fear based on past persecution, to obtain asylum Garcia-Bustamante must demonstrate that she “has a subjectively genuine and objectively reasonable fear of future persecution.” Bringas- Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc) (internal 3 23-4057 citation and quotation marks omitted). Substantial evidence supports the agency’s determination that Garcia-Bustamante did not establish an objectively reasonable well-founded fear of future persecution. Garcia-Bustamante’s close family members have remained in Honduras unharmed. See Sharma, 9 F.4th at 1066 (“The ongoing safety of family members in the petitioner’s native country undermines a reasonable fear of future persecution.”). The IJ further found insufficient evidence to conclude that Garcia-Bustamante would be singled out for future persecution. The country conditions reports on persons with disabilities in Honduras do not compel a contrary conclusion because they at best suggest discrimination on this basis, not persecution. Finally, Garcia-Bustamante does not challenge the IJ’s finding that she did not demonstrate a pattern or practice of persecution toward any of Garcia-Bustamante’s three proposed particular social groups, and, therefore, this issue is waived. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (explaining that issues not raised in opening brief are waived). Because Garcia-Bustamante did not meet her lesser burden of establishing eligibility for asylum, her claim for withholding of removal also fails. See Sharma, 9 F.4th at 1066. 2. Substantial evidence supports the agency’s denial of CAT relief. To qualify for CAT relief, Garcia-Bustamante “must establish that, taking into account all possible sources of torture, [s]he is more likely than not to be tortured” if removed 4 23-4057 to Honduras. Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1156 (9th Cir. 2022) (internal citation and quotation marks omitted). Given the lack of past torture or physical harm, Garcia-Bustamante did not demonstrate a particularized risk of torture. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam) (“[T]he petitioner must demonstrate that he would be subject to a ‘particularized threat of torture . . . .’”) (quoting Lanza, 389 F.3d at 936). 3. Garcia-Bustamante also claims that the IJ violated her due process rights by failing to act as a neutral fact-finder. Because Garcia-Bustamante did not raise this argument before the BIA, she failed to exhaust it. See Amaya v. Garland, 15 F.4th 976, 986 (9th Cir. 2021). We therefore may not consider it. See 8 U.S.C. § 1252(d)(1); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023), as amended. Regardless, there is no indication that the IJ failed to act neutrally in considering Garcia-Bustamante’s claims. PETITION DENIED. 5 23-4057