Jerry E. Brenes Guerra v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY E. BRENES GUERRA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-94
Agency No. A208-594-199
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 09, 2023**
San Francisco, California
Before: FRIEDLAND and R. NELSON, Circuit Judges, and KATZMANN,***
Judge.
Jerry E. Brenes Guerra, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (BIA) affirmance of an Immigration
Judge’s (IJ) denial of his applications for asylum and withholding of removal
* 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 Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
FILED
MAR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under the Immigration and Nationality Act (INA).1 Brenes Guerra also contends
that the IJ lacked jurisdiction over his removal proceedings and that he should be
permitted to apply for voluntary departure. We have jurisdiction under 8 U.S.C.
§ 1252. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017).
We review factual findings underlying the BIA’s denials of asylum and
withholding of removal for substantial evidence, and review questions of law de
novo. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). To reverse the
BIA under the substantial evidence standard, we must determine that the evidence
not only supports a contrary conclusion but also compels it. Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). When the BIA relies in part on the
immigration judge’s reasoning, we review both decisions. Singh v. Holder, 753
F.3d 826, 830 (9th Cir. 2014).
1. In denying Brenes Guerra’s asylum application, the BIA determined
that Brenes Guerra did not establish past harm rising to the level of persecution
and that Brenes Guerra did not establish a well-founded fear of persecution.2
Because we would affirm the BIA’s determination under any standard of review,
1 Brenes Guerra also sought relief under the Convention Against Torture (CAT)
before the IJ. That claim is not before us, as Brenes Guerra waived his CAT
claim on appeal to the BIA and does not mention it in his opening brief.
2 Because these holdings were sufficient to deny Brenes Guerra’s asylum
application, the BIA did not decide whether Brenes Guerra experienced harm on
account of a protected ground. We likewise limit our review to these bases. See
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam) (“In
reviewing the decision of the BIA, we consider only the grounds relied upon by
that agency.”).

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we need not address the specific standard that applies in this case. Cf. Fon v.
Garland, 34 F.4th 810, 813 & n.1 (9th Cir. 2022).
The past harm Brenes Guerra identifies consists of two events. First, the
father of two young men who were killed in a car accident involving Brenes
Guerra’s cousin (Franklin) called Franklin’s father (Uncle Elder) and demanded
that Uncle Elder turn Franklin over to him because he was angry and wanted
revenge. Second, one of Brenes Guerra’s other uncles (Uncle Narry) was shot
and killed by unknown perpetrators after being deported to Guatemala from the
United States.
Persecution is “an extreme concept that does not include every sort of
treatment our society regards as offensive.” Nagoulko v. INS, 333 F.3d 1012,
1016 (9th Cir. 2003) (quoting Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.
1998)); see also Sharma v. Garland, 9 F.4th 1052, 1060–61 (9th Cir. 2021). We
discern no error in the BIA and IJ’s determination that these events did not
amount to past persecution because Brenes Guerra was neither harmed nor
threatened. The threat Uncle Elder received was not directed at Brenes Guerra,
nor is there any evidence that the threat was fulfilled against Uncle Elder or
Franklin. See Villegas Sanchez v. Garland, 990 F.3d 1173, 1179–80 (9th Cir.
2021) (“Mere threats, without more, do not necessarily compel a finding of past
persecution.”). And there is no evidence that Uncle Narry’s murder involved
Brenes Guerra or was connected to the threat against Uncle Elder and Franklin.
See Tamang, 598 F.3d at 1092 (“[W]e have not found that harm to others may

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substitute for harm to an applicant . . . who was not in the country at the time he
claims to have suffered past persecution there.”).
The BIA further determined that Brenes Guerra failed to establish a
well-founded fear of future persecution. The BIA found that the threat was only
directed at Uncle Elder and Franklin,3 that Uncle Elder and Franklin remained in
Guatemala unharmed, that there was no connection between the threat and Uncle
Narry’s murder, and that Brenes Guerra was not personally targeted. This
properly supported the BIA’s conclusion that Brenes Guerra’s fear of persecution
was not well-founded or objectively reasonable. See Sharma, 9 F.4th at 1065–
66. And contrary to Brenes Guerra’s assertion, the BIA and IJ did not erroneously
conflate the nexus analysis with the fear of future persecution analysis. That the
motivation behind the threat and the murder would also be relevant to the nexus
analysis does not make it irrelevant to whether Brenes Guerra’s fear of future
persecution was objectively reasonable. See id. (finding the persecutors’ interest
in harming the petitioner relevant to whether the fear of future persecution was
objectively reasonable).
2. Because Brenes Guerra “has not met the lesser burden of
establishing his eligibility for asylum, he necessarily has failed to meet the more
stringent ‘clear probability’ burden required for withholding of [removal].”
Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001) (citation omitted).
3 There is no evidence, as Brenes Guerra asserts, that the threat was to kill Uncle
Elder’s family.

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3. Brenes Guerra also argued before the BIA that the IJ lacked
jurisdiction over his case because his notice to appear did not specify the date and
time of his removal proceedings. He contends that Pereira v. Sessions, 138 S.
Ct. 2105 (2018), supports his position. This argument is foreclosed by our
precedent. See United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir.
2022) (en banc); Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).
The notice of hearing Brenes Guerra received four days after receiving his notice
to appear provided the date and time of his hearing, and that was sufficient to vest
jurisdiction. Bastide-Hernandez, 39 F.4th at 1193.
4. Brenes Guerra also argues that we should remand this case and
permit him to apply for voluntary departure. Because he failed to make this
argument before the BIA, it is unexhausted, and we lack jurisdiction to address
it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (citing 8 U.S.C.
§ 1252(d)(1)); cf. Zamorano v. Garland, 2 F.4th 1213, 1225 (9th Cir. 2021).
PETITION DENIED in part and DISMISSED in part.

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