JOSE LUIS IXTABALAN-RENOJ, AKA Jose Luis Perez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS IXTABALAN-RENOJ, AKA
Jose Luis Perez,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-71837
Agency No. A075-112-392
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 14, 2018**
San Francisco, California
Before: O'SCANNLAIN and BEA, Circuit Judges, and STEARNS,*** District
Judge.
* 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 Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Jose Luis Ixtabalan-Renoj (Ixtabalan) petitions from a Board of Immigration
Appeals (BIA) decision denying him withholding of removal and protection under
the Convention Against Torture (CAT). We deny the petition.
A court of appeals reviews a denial of withholding of removal under the
substantial evidence standard. Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir.
2006). “Under that standard, the BIA’s determination must be upheld if it is
supported by reasonable, substantial and probative evidence from the record.” Id.
With respect to factual allegations, where “the IJ and the BIA determined that [an
applicant’s] testimony was credible, we treat the facts to which he testified as
true.” Singh v. Holder, 764 F.3d 1153, 1159 (9th Cir. 2014). These factual
findings are to be deemed “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Sangha
v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).1
To establish eligibility for withholding of removal, an applicant must
demonstrate a “clear probability,” INS v. Cardoza-Fonseca, 480 U.S. 421, 430
(1987), that his “life or freedom would be threatened” on account of his “race,
1 While both the IJ and BIA held that Ixtabalan was collaterally estopped
from asserting claims that should have been raised in the 2004 proceedings, the
government now apparently agrees that the BIA and IJ erred in this respect. We
need not resolve the issue as the BIA’s determination that Ixtabalan’s claims fail
on the merits is supported by substantial evidence.

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religion, nationality, membership in a particular social group, or political opinion,”
8 U.S.C. § 1231(b)(3)(A), if he were to be returned to his home country. The
applicant must also demonstrate that the persecution “is committed by the
government or forces the government is either unable or unwilling to control.”
Doe v. Holder, 736 F.3d 871, 877-78 (9th Cir. 2013) (internal quotation marks
omitted).
Ixtabalan fails to meet the requirement that there be a causal connection
between his claimed familial-based social group membership — family members
of former military service members — and the persecution he suffered. Simply
put, Ixtabalan put forward no evidence that the individuals who attacked him even
knew that a member of his family had served in the military, much less that they
attacked him for that reason. See Regalado-Escobar v. Holder, 717 F.3d 724, 730
(9th Cir. 2013) (no past persecution on account of political opinion where applicant
“offered no evidence to show that his attackers were even aware of his political
beliefs”).
Although the BIA and the IJ applied the “one central reason” test which has
now been supplanted for withholding of removal claims, see Barajas-Romero v.
Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (holding that the less demanding “a
reason” standard applies to withholding of removal claims), we see no reason to
remand the case for further consideration. Where, as here, the “the IJ and Board

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clearly found there was no nexus between the [conduct underlying the applicant’s
claim] and a protected ground,” and where “substantial evidence supports this
finding . . . remanding in light of Barajas-Romero would be an ‘idle and useless
formality’ as the outcome would be the same under either standard.” Macias-
Padilla v. Sessions, 2018 WL 1633006, at *1 (9th Cir. Apr. 5, 2018) (quoting
NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)).
The BIA upheld the IJ’s determination that Ixtabalan did not meet his
burden under CAT of establishing a clear probability of being tortured if returned
to his home country. Substantial evidence supports the BIA’s determination that
Ixtabalan’s claim fails for two independent reasons. First, Ixtabalan could not
make the required showing that the physical beatings and threats he experienced in
Guatemala rose to the level of torture as defined by the CAT and its implementing
regulations. See 8 C.F.R. § 1208.18(a)(1) (defining torture as “any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person”). Second, even if the physical beatings, coupled with the menacing phone
calls and the killings of his uncle and father, could meet the required CAT showing
of “severe pain or suffering,” Ixtabalan failed to show that these indignities were
“inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
PETITION FOR REVIEW DENIED.

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