Celestina De Los Angeles Corvera- Manzanarez; Jefferson Antonio Corvera- Manzanarez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Celestina De Los Angeles Corvera-
Manzanarez; Jefferson Antonio Corvera-
Manzanarez,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-633
Agency No. A215-702-734
A215-702-735
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 12, 2023**
San Francisco, California
Before: S.R. THOMAS and H.A. THOMAS, Circuit Judges, and RAKOFF,***
District Judge.
FILED
APR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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Celestina and Jefferson Corvera-Manzanarez, natives and citizens of El
Salvador, petition for review of the Board of Immigration Appeals’ (“BIA”) denial
of their applications for asylum, withholding of removal, and Convention Against
Torture (“CAT”) relief. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We
review questions of law de novo. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir.
2020). We review factual findings for substantial evidence. Id. “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). We deny the petition. Because the parties are familiar with the factual and
procedural history of the case, we need not recount it here.
I
In an asylum claim, the applicant “must demonstrate that he has suffered
past persecution or has a well-founded fear of future persecution on account of
race, religion, nationality, membership in a particular social group, or political
opinion.” Id. Substantial evidence supports the BIA’s determinations that the
petitioners did not suffer past persecution, do not have an objectively reasonable
fear of future persecution, and could safely relocate within El Salvador.
“An applicant alleging past persecution has the burden of establishing that
. . . his treatment rises to the level of persecution.” Baghdasaryan v. Holder, 592
2
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F.3d 1018, 1023 (9th Cir. 2010). Substantial evidence supports the BIA’s
determination that petitioners did not suffer past persecution, because the threat
made to petitioners was not repeated or combined with other significant
mistreatment. Although “[d]eath threats alone can constitute persecution,” Kaur v.
Wilkinson, 986 F.3d 1216, 1227 (9th Cir. 2021), this court has “been most likely to
find persecution where threats are repeated, specific and combined with
confrontation or other mistreatment.” Sharma v. Garland, 9 F.4th 1052, 1062 (9th
Cir. 2021) (citation omitted). The gang did not directly threaten, harm, or contact
Celestina at all, and threatened Jefferson once. This single threat is like the
majority of cases in which “threats do not rise to the level of persecution.”
Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005).1
Substantial evidence supports the BIA’s determination that petitioners did
not establish an objectively reasonable fear of future persecution. Members of the
gang MS-13 never attempted to contact petitioners at home, either when they lived
there or after they left. Accordingly, there is an insufficient basis in the record to
conclude that MS-13 would have a “continuing interest” in petitioners. Sharma, 9
1 Because substantial evidence supports the BIA’s determination that
petitioners did not suffer past persecution, the BIA properly determined that
petitioners are also ineligible for humanitarian asylum. See 8 C.F.R.
§ 1208.13(b)(1)(i), (iii).
3
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F.4th at 1065. Substantial evidence also supports the BIA’s determination that
petitioners could safely relocate within El Salvador, because there is not an MS-13
presence in the areas where Celestina’s mother and uncle live.2
II
Substantial evidence supports the BIA’s determination that petitioners are
ineligible for withholding of removal. “To be eligible for withholding of removal,
an applicant must show that the evidence in the record demonstrates a ‘clear
probability of persecution.’” Aden v. Wilkinson, 989 F.3d 1073, 1085–86 (9th Cir.
2021) (citation omitted). The BIA properly determined that because petitioners
have not “met the lesser burden” of establishing asylum eligibility, they
“necessarily [have] failed to meet the more stringent ‘clear probability’ burden
required for withholding.” Sharma, 9 F.4th at 1066 (citation omitted).
III
Substantial evidence supports the BIA’s determination that petitioners are
ineligible for CAT relief. Torture is “more severe than persecution,” Davila v.
Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (citation omitted), and requires the
2 Remanding for reconsideration in light of Rodriguez-Tornes v. Garland,
993 F.3d 743 (9th Cir. 2021), and Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021),
as petitioners request, would be inappropriate here. Those cases address the
particular social group and nexus analysis. Because the BIA did not reach those
issues, those cases are irrelevant.
4
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infliction of “severe pain or suffering . . . inflicted by or at the instigation of or
with the consent or acquiescence of a public official acting in an official capacity,”
8 C.F.R. § 208.18(a)(1). “Because the BIA could reasonably conclude that
[petitioners’] past harm did not rise to the level of persecution, it necessarily falls
short of the definition of torture.” Sharma, 9 F.4th at 1067.
PETITION DENIED.
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