Juan Carlos Bautista Lopez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS BAUTISTA LOPEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-554
Agency No.
A205-143-214
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2024
Phoenix, Arizona
Before: BERZON, HURWITZ, and JOHNSTONE, Circuit Judges.
Juan Carlos Bautista Lopez, a native and citizen of Mexico, seeks review of
an order from the Board of Immigration Appeals (“BIA”) dismissing his appeal of
an order from an Immigration Judge (“IJ”) denying his applications for
withholding of removal and relief under the Convention Against Torture (“CAT”).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 22 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2 23-554
We have jurisdiction under 8 U.S.C. § 1252. “Where the BIA conducts its
own review of the evidence and law . . . , our review is limited to the BIA’s
decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v.
Barr, 974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d
1164, 1169 (9th Cir. 2012)). However, where the BIA “expresse[s] agreement with
the reasoning of the IJ,” we review both decisions. Kumar v. Holder, 728 F.3d 993,
998 (9th Cir. 2013). We review the BIA’s legal conclusions de novo and its factual
findings for substantial evidence. Id. We deny the petition.
1. The BIA did not rely on or apply an incorrect legal standard in
determining whether Bautista Lopez suffered past persecution. While the IJ used
the term “compel” in her written decision, the BIA, reviewing de novo, see Ghaly
v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995), correctly determined that Bautista
Lopez was required to show that it was “more likely than not that he . . . would be
persecuted on account of” a protected ground, 8 C.F.R. § 1208.16(b)(2). “Any error
committed by the IJ [was] rendered harmless by the [BIA’s] application of the
correct legal standard.” Ghaly 58 F.3d at 1430 (citing Elnager v. INS, 930 F.2d 784,
787 (9th Cir. 1991)).
2. Substantial evidence supports the BIA’s determination that Bautista
Lopez failed to demonstrate that the harms he suffered in Mexico rose to the level

-- 2 of 4 --

3 23-554
of past persecution.1 See 8 C.F.R. § 1208.16(b); see also Sanjaa v. Sessions, 863
F.3d 1161, 1164 (9th Cir. 2017) (stating that it is petitioners’ burden to establish
past persecution); Sharma v. Garland, 9 F.4th 1052, 1061–63 (9th Cir. 2021)
(identifying several non-exhaustive factors relevant to our review of the past
persecution determination).
The “key question” we must consider is whether the “cumulative effect” of a
petitioner’s harm “rises to the level of persecution.” Sharma, 9 F.4th at 1061
(quoting Gormley v. Ashcroft, 364 F.3d 1172, 1176–77 (9th Cir. 2004)).
“Persecution . . . is an extreme concept that means something considerably more
than discrimination or harassment.” Id. at 1060 (quoting Donchev v. Mukasey, 553
F.3d 1206, 1213 (9th Cir. 2009)).
Bautista Lopez experienced mistreatment and bullying as a child due to his
sexual orientation, including when a group waited for Bautista Lopez after school
and threatened him with a knife. There is no indication that these individuals
continued harassing him into adulthood, and Bautista Lopez did not present
evidence that these incidents, while quite troubling, caused him significant harm.
Bautista Lopez also suffered a beating as a young adult that required stitches. But
Bautista Lopez did not know his attacker, his attacker did not show a continuing
1 The parties agree that substantial evidence review applies to the BIA’s conclusion
that the harm Bautista Lopez suffered did not rise to the level of persecution.
Accordingly, we apply it here.

-- 3 of 4 --

4 23-554
interest in him, and he remained in Mexico without incident for several months
after the confrontation. Compare Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.
2003) (holding that unfulfilled threats and mistreatment along with a single
unaffiliated beating did not compel a finding of persecution) with Fon v. Garland,
34 F.4th 810, 814 (9th Cir. 2022) (finding past persecution where attackers stabbed
petitioner, threatened petitioner’s life, and continued to pursue petitioner well after
the stabbing).
Thus, considering the cumulative effects of the harm Bautista Lopez
suffered, the record does not compel a determination that Bautista Lopez
demonstrated past persecution. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012,
1016 (9th Cir. 2023).
3. Bautista Lopez does not challenge the BIA’s determination that he failed
to establish a likelihood of torture by or with the consent or acquiescence of the
Mexican government, and he has thus forfeited the argument. See Hernandez v.
Garland, 47 F.4th 908, 916 (9th Cir. 2022). Because Bautista Lopez must have
shown a clear probability of torture by or with the consent or acquiescence of the
Mexican government to be eligible for protection under the CAT, see 8 C.F.R.
§§ 1208.16(c)(2), 1208.18(a)(1), this forfeiture precludes his claims concerning the
denial of CAT protection. See Rodriguez-Zuniga, 69 F.4th at 1023–24.
PETITION DENIED.

-- 4 of 4 --