Jose Manuel Moran-Choto v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL MORAN-CHOTO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-1359
Agency No. A216-381-565
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 9, 2023**
Seattle, Washington
Before: HAWKINS, TALLMAN, and IKUTA, Circuit Judges.
Jose Manuel Moran-Choto, a native and citizen of El Salvador, seeks review
of the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration
Judge (“IJ”) order denying his applications for asylum, withholding of removal, and
* 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
MAY 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
We review the denial of asylum, withholding of removal, and CAT protection
for substantial evidence. Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.
2022). Under that standard, the agency’s action should be upheld “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Id.
(citation omitted).
To qualify for asylum, Moran-Choto must establish that he is a refugee within
the meaning of 8 U.S.C. § 1101(a)(42)(A). See Garcia v. Wilkinson, 988 F.3d 1136,
1142—43 (9th Cir. 2021). He thus bears the burden of proving that he is unable or
unwilling to return to El Salvador because of past persecution or a well-founded fear
of future persecution on account of a protected ground. See id. Substantial evidence
does not compel a finding that Moran-Choto qualifies as a refugee under either
prong.
Substantial evidence supports the BIA’s determination that Moran-Choto did
not suffer past persecution on account of his statutorily protected ground despite
threatening remarks from the 18th Street Gang. See Sharma v. Garland, 9 F.4th
1052, 1064 (9th Cir. 2021) (“While no doubt ‘unpleasant,’ the threats evidently did
not cause ‘significant actual suffering or harm.’”) (quoting Lim v. INS, 224 F.3d 929,
936 (9th Cir. 2000)). The agency found Moran-Choto testified credibly that he was

-- 2 of 5 --

3
threatened by the 18th Street Gang on two occasions. In the first instance, gang
members told him “they knew that [he] was the brother of the person who had killed
a gang member” and they would kill him, his wife, and his two children unless he
agreed to distribute drugs for their criminal enterprise. Second, Moran-Choto was
abducted by gang members and held at gunpoint for two hours, and the gang
similarly threatened the lives of his family unless he agreed to distribute drugs. In
both instances, he was released without any injuries. Substantial evidence supports
the BIA’s holding that the two encounters with the gang that Moran-Choto described
did not rise to the level of persecution. See Duran-Rodriguez v. Barr, 918 F.3d 1025,
1027—28 (9th Cir. 2019).
Moran-Choto testified that he remained near his hometown from
approximately April 2016, when he was last threatened by gang members, until
November 2017, when he departed for the United States. During that nearly sixteen-
month period, he had no further contact with the gang despite his refusal to join their
criminal enterprise distributing drugs.
Further, since late 2017, his family—wife, two children, parents, and nine
siblings—has continued to reside in El Salvador without any further gang contact.
See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (“[A] petitioner’s fear
of future persecution is weakened, even undercut, when similarly-situated family
members living in the petitioner’s home country are not harmed.”) (cleaned up); see

-- 3 of 5 --

4
also 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.”)
(citation omitted). We reject Moran-Choto’s argument that he is not similarly
situated to his wife and children in El Salvador because they were also threatened
by gang members. Thus, the BIA’s determination that Moran-Choto is ineligible for
asylum is supported by substantial evidence.1
Next, to qualify for withholding of removal, Moran-Choto must demonstrate
a “clear probability” of persecution because of a protected ground. See Tamang, 598
F.3d at 1091. This standard “is more stringent than the well-founded fear standard
for asylum.” Id. Here, substantial evidence supports the agency’s conclusion that
Moran-Choto failed to demonstrate the lower burden required for asylum.
Consequently, his withholding of removal claim also fails. See Zehatye v. Gonzales,
453 F.3d 1182, 1190 (9th Cir. 2006).2
Finally, substantial evidence supports the agency’s finding that Moran-Choto
failed to demonstrate an individualized risk of torture if he were returned to his home
country. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183—84 (9th Cir. 2020). He
1 Because Moran-Choto fails to establish past persecution or a well-founded fear of
future persecution, we decline to address his challenge to the agency’s nexus
determination. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
2 Therefore, we need not address Moran-Choto’s argument that the BIA failed to
apply the correct nexus standard for withholding of removal. See Simeonov, 371
F.3d at 538.

-- 4 of 5 --

5
has not been tortured in the past, nor has he shown that it is more likely than not he
will be subjected to torture by or with the acquiescence of a Salvadoran public
official. See id. Therefore, the BIA did not err in denying Moran-Choto’s
application for protection under the CAT.
Moran-Choto’s motion for a stay of removal [Docket Entry No. 3] is denied
as moot.
PETITION DENIED.

-- 5 of 5 --