Jorge Andara-Ponce v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ANDARA-PONCE,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70356
Agency No. A024-113-241
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2022
Submission Withdrawn March 1, 2023
Resubmitted October 11, 2023
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,** Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
OCT 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Jorge Andara-Ponce petitions for review of a decision of the Board of
Immigration Appeals (BIA) denying his claim for protection under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
Petitioner is a native and citizen of Honduras, and a former member of the
Eighteenth Street Gang. Petitioner first entered the United States without inspection
in 1974. On August 7, 2019, the Department of Homeland Security initiated
proceedings to issue a final administrative order pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii), and on August 23, 2019, an immigration official issued a final
order of removal. Later, Petitioner sought relief under CAT, and an asylum officer
referred him to withholding-only proceedings. The Immigration Judge (IJ) and the
BIA denied all forms of relief. Petitioner filed a petition with this court within thirty
days of the BIA’s decision.1
We review the denial of CAT claims for substantial evidence. Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). “Under this standard, we
must uphold the agency determination unless the evidence compels a contrary
conclusion.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)). To
obtain relief under CAT, a petitioner “must show ‘it is more likely than not that he
1 This filing was timely pursuant to this court’s holdings in Ortiz-Alfaro v. Holder,
694 F.3d 955, 958 (9th Cir. 2012) and Alonso-Juarez v. Garland, 80 F.4th 1039,
1051 (9th Cir. 2023).

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3
or she would be tortured if removed to the proposed country of removal’” and that
the torture would occur “by, or at the instigation of, or with the consent or
acquiescence of, a public official.” Plancarte Sauceda v. Garland, 23 F.4th 824,
834 (9th Cir. 2022) (citations omitted), as amended. The threat of torture must also
be particularized. Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (citing 8
C.F.R. § 208.18(a)(1)).
Here, the record does not compel the conclusion that it is more likely than not
that the Petitioner will be tortured by or with the consent or acquiescence of the
government. Although the Petitioner testified to direct threats from the Eighteenth
Street Gang as well as gang members’ knowledge of his connection to Honduras,
the threats in question were made almost twenty years ago, with no evidence of
recent action. Additionally, the Department of State’s 2018 country report submitted
by the Petitioner indicates that while the Eighteenth Street Gang is active in
Honduras, there “were no reports of disappearances by or on behalf of government
authorities.”
In short, nothing in the record compels a decision contrary to that of the BIA.
PETITION DENIED.

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