Olga Yadiralia Gonzalez Amezcua; Miguel Gonzalez- Ubiarco v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLGA YADIRALIA GONZALEZ
AMEZCUA; MIGUEL GONZALEZ-
UBIARCO,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-489
Agency Nos.
A209-820-700
A209-820-623
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2024**
Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges.
Olga Gonzalez Amezcua (“Gonzalez Amezcua”) and Miguel Gonzalez-
* 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
FEB 15 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ubiarco (“Gonzalez-Ubiarco”) (collectively, “Petitioners”),1 natives and citizens of
Mexico, seek review of a decision by the Board of Immigration Appeals (“BIA”)
affirming an immigration judge’s (“IJ”) denial of their applications for withholding
of removal and relief under the Convention Against Torture (“CAT”).2 We review
for substantial evidence the BIA’s determination that an applicant is not eligible
for withholding of removal, Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th
Cir. 2002), or protection under the CAT, Lalayan v. Garland, 4 F.4th 822, 840 (9th
Cir. 2021). The BIA’s factual findings are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Dawson v. Garland,
998 F.3d 876, 882 (9th Cir. 2021). We have jurisdiction over the BIA’s decision
under 8 U.S.C. § 1252, and we deny the petition.
An applicant “may establish eligibility for withholding of removal (A) by
establishing a presumption of fear of future persecution based on past persecution,
or (B) through an independent showing of clear probability of future persecution.”
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010) (citing 8 C.F.R.
1 Petitioners both submitted their own applications for relief from removal.
However, Gonzalez Amezcua’s application is based on the same facts as
Gonzalez-Ubiarco’s application.
2 Petitioners also applied for asylum, but the IJ denied their asylum applications,
which were filed more than eight years after their entry to the United States, as
untimely. Petitioners did not appeal that determination to the BIA or this court, so
their asylum claims are not before us.

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§§ 1208.16(b)(1), 1208.16(b)(2)). “A ‘clear probability’ means it is ‘more likely
than not’ that the petitioner would be subject to persecution on account of one of
the protected grounds.” Id. (citing INS v. Cardoza–Fonseca, 480 U.S. 421, 429
(1987)). To demonstrate eligibility for CAT relief, “an alien must show that it is
‘more likely than not’ that a government official or person acting in an official
capacity would torture him or aid or acquiesce in his torture by others.” Wakkary v.
Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009) (quoting Kamalthas v. INS, 251
F.3d 1279, 1283 (9th Cir. 2001)). “The standard of proof . . . is the same as for
regular withholding of removal [claims].” Id.
In 2004, Gonzalez-Ubiarco’s cousin, Oscar Eduardo Ubiarco Ramirez
(“Oscar”), was murdered outside his house in Jalisco, Mexico. In 2005, over a
period of six months, Gonzalez-Ubiarco’s uncle, Oscar’s father, paid bribes to the
police to investigate Oscar’s murder. During this period, Gonzalez-Ubiarco, the
uncle, and another relative received threatening phone calls.3 The callers threatened
“consequences for the family” if Gonzalez-Ubiarco’s uncle continued to
investigate Oscar’s murder. The threatening calls ceased when Gonzalez-
Ubiarco’s uncle stopped paying the bribes. Gonzalez-Ubiarco’s cousin, Gerardo
Ubiarco Bramila (“Geraldo”), joined the police force in 2006 and reopened the
3 Gonzalez Amezcua testified that she never received any threats.

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investigation of Oscar’s murder. Petitioners allege Geraldo was murdered in 2009.
The coroner, however, ruled Geraldo’s death a suicide in the official death
certificate. Petitioners do not identify who killed Oscar and Geraldo or who made
the threatening phone calls. The two relatives who received the same threatening
phone calls as Gonzalez-Ubiarco have remained unharmed in Mexico since
Oscar’s murder in 2004.
1. Substantial evidence supports the conclusion that Petitioners failed to
establish past persecution or fear of future persecution based upon the threats
Gonzalez-Ubiarco received following Oscar’s murder. As a general rule,
“unfulfilled threats, without more,” do not constitute “past persecution.” Lim v.
INS, 224 F.3d 929, 936 (9th Cir. 2000). However, “[i]n certain extreme cases, we
have held that repeated and especially menacing death threats can constitute a
primary part of a past persecution claim, particularly where those threats are
combined with confrontation or other mistreatment.” Id. Moreover, we have held
that “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.” Tamang, 598 F.3d at 1094 (cleaned up) (emphasis in original).
The record evidence here failed to establish that the threats directed at
Gonzalez-Ubiarco were sufficiently severe to inflict harm amounting to
persecution. Furthermore, the fact that the two relatives who received the same

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threats as Gonzalez-Ubiarco continue to live in Mexico unharmed undermines
Petitioners’ claim of future persecution. Therefore, we find that substantial
evidence supports the BIA’s denial of Petitioners’ withholding of removal claims.
2. Substantial evidence also supports the conclusion that Petitioners have not
established that they will be tortured if they are removed to Mexico. Petitioners’
CAT claims are based on the same facts as their withholding of removal claims.
Such facts do not establish that Petitioners would most likely be tortured by or with
the acquiescence of a government official or other person acting in an official
capacity upon removal. See Wakkary, 558 F.3d at 1067–68. Therefore, we find that
substantial evidence supports the BIA’s determination that Petitioners are not
entitled to CAT relief.4
PETITION DENIED.
4 Because substantial evidence supports the denial of Petitioners’ CAT claims, we
decline to address whether Petitioners waived their CAT claims on appeal.

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