Ricardo Davila-Rabanal v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO DAVILA-RABANAL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71872
Agency No. A073-841-949
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Pasadena, California
Before: GRABER, MILLER, and LEE, Circuit Judges.
Ricardo Davila-Rabanal seeks review of the Board of Immigration Appeals’
(BIA) order affirming the denial of his Convention Against Torture (CAT) claim.
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. We review the denial of CAT protection for substantial evidence.
* 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).
FILED
MAR 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Lopez v. Sessions, 901 F.3d 1071, 1074 (9th Cir. 2018). Under that standard, we
must “uphold the agency’s determination unless compelled to conclude to the
contrary.” Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019) (internal quotation
marks omitted). Substantial evidence supports the BIA’s denial of CAT protection.
2. The Peruvian police’s treatment of Davila-Rabanal—while brutal—did
not rise to the level of torture. He described his injuries as “bruises” with some
“minor cuts,” and his worst injury was a cut across his forehead. Although the police
pointed a gun at Davila-Rabanal and hit him with it, the record contains no evidence
that the gun was loaded or that the officers ever threatened to kill him. To the
contrary, in response to a question from the immigration judge, Davila-Rabanal
clarified that the police did not threaten to kill him. We have held that such treatment
is a lesser form of cruel, inhuman or degrading treatment that does not amount to
torture. See Ahmed v. Keisler, 504 F.3d 1183, 1200–01 (9th Cir. 2007); Vitug v.
Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Substantial evidence thus supports the
BIA's determination that Davila-Rabanal has not suffered past torture.
3. Substantial evidence also supports the determination that Davila-
Rabanal’s ability to live in Peru for three years without incident undermines his
claim of fear of future torture. Davila-Rabanal lived a normal life in Peru. He held
a job, acquired housing, traveled throughout the city, and even obtained a passport
from the Peruvian government.

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4. The evidence of country conditions does not overcome the deficiencies
in Davila-Rabanal’s testimony. The country conditions evidence does not paint a
picture of widespread torture such that “the country conditions alone [] play[s] a
decisive role in granting relief . . . .” Kamalthas v. I.N.S., 251 F.3d 1279, 1280 (9th
Cir. 2001).
5. Davila-Rabanal makes several arguments that the BIA erred in its
torture analysis, but none of them has merit.
First, he argues that the BIA erred in finding that the government had not
acquiesced in his torture. But the BIA never said that the government did not
acquiesce in Davila-Rabanal’s beating.
Second, he contends that the BIA cited factually inapposite cases. He argues
that Zhang v. Ashcroft, 388 F.3d 713, 721–22 (9th Cir. 2004), is inapt because the
asylum-seeker in that case had never been tortured. But the BIA merely cited Zhang
for the proposition that “to demonstrate eligibility for protection under the [CAT],
the evidence must demonstrate a clear probability that the applicant will be tortured
in the country of removal.” The next case is Matter of J-F-F-, 23 I. & N. Dec. 912
(A.G. 2006), which the BIA cited for the proposition that “an alien’s eligibility for
deferral under the Convention Against Torture cannot be established by stringing
together a series of suppositions.” The agency permissibly concluded that Davila-
Rabinal’s CAT claim relies on a series of suppositions.

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Third, Davila-Rabanal asserts that his “claim relies upon a line of precedent
regarding the relevance of past torture.” But his past treatment by the police did not
rise to the level of torture. Given that fact, his reliance on cases considering the
relevance of past torture is misplaced.
DENIED.

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