Unreported / Non-Citable
Background
Petitioner, a native and citizen of Guatemala, asked the Ninth Circuit to review a Board of Immigration Appeals decision dismissing his appeal from an Immigration Judge's denial of withholding of removal and protection under the Convention Against Torture. The court had jurisdiction under 8 U.S.C. § 1252(a)(1). Judges Bea, Bress, and Forrest decided the case without oral argument in an unpublished memorandum.
His claim rested on three episodes. In 1999, guerrillas shot his father when Petitioner was thirteen, and the family later spent a year or two hiding in Retaluleu. Petitioner testified that he learned of the attack only through family stories, that he was too young to remember where he was while the family hid, and that the guerrillas attacked his father because it was a time of war. He also said his mother had received violent threats, though he did not know when she was last threatened, and that guerrillas made a single threat against him around 2002 or 2003.
The record also showed that Petitioner told immigration officials in 2007 that he had no reason to fear returning to Guatemala, and that when he did return home he lived there for a year and a half without incident. His mother and siblings have remained in his hometown without incident for about two decades.
The Court’s Holding
The court reviewed the BIA's factual findings for substantial evidence and denied the petition. It held that substantial evidence supported the conclusion that Petitioner had not suffered past persecution. He claimed no physical or emotional harm from the 1999 attack on his father, and the court said that the circumstances involving his father, though unfortunate, did not amount to past persecution of Petitioner. The threats fared no better. Under circuit precedent, threats alone constitute persecution only in a small category of cases, where they are so menacing as to cause significant actual suffering or harm. Petitioner could not say when his mother was last threatened, did not testify that any threat led to violence against her, and in the two decades since the single threat to him received no further threats or attacks. At most, the unfulfilled threats were harassment rather than persecution.
The court also upheld the finding that Petitioner is unlikely to face future persecution. The three episodes did not compel a finding that persecution was more likely than not. The two decades his mother and siblings spent in his hometown without incident undercut his case. Nothing in his testimony or the record explained why a single threat from 2002 or 2003, which he disclaimed in 2007, supports a likelihood of future persecution today, and his year and a half in Guatemala without threats or violence weakened the claim further.
On the CAT claim, the court held that Petitioner forfeited his challenge by failing to raise it sufficiently in his opening brief. It added that even if the challenge were properly before it, he provided no evidence showing a likelihood of future torture in Guatemala. The court denied the petition for review, leaving the BIA's decision in place.
Key Takeaways
- Harm to a family member does not establish the applicant's own past persecution where the applicant suffered no physical or emotional harm and learned of the event only later.
- Unfulfilled threats rarely amount to persecution unless they are so menacing that they cause significant actual suffering or harm.
- An applicant's earlier statement that he had no reason to fear return, followed by an uneventful stay at home, can weaken or undercut a claim of future persecution.
- Family members who remain in the applicant's hometown without incident for many years undercut the claim that persecution is likely.
- A CAT challenge not sufficiently raised in the opening brief is forfeited, and the court also found the record lacked evidence of likely torture.
Why It Matters
This is an unpublished memorandum, so it is not precedent except as provided by Ninth Circuit Rule 36-3. It applies deferential substantial evidence review to the agency's factual findings and shows how the court treats a claim built on a relative's wartime injury, old and unfulfilled threats, and an applicant's own prior statements.
The ruling resolves only this petition on this record. Because the court found the CAT challenge forfeited and, alternatively, unsupported by evidence, it offers little guidance on the merits of CAT claims in other cases, and it does not decide any question beyond the agency's denial of withholding and CAT relief.