Jose Daniel Gomez-Menendez v. MERRICK B. GARLAND, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DANIEL GOMEZ-MENENDEZ,
Petitioner,
v.
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
No. 21-1333
Agency No. A201-291-600
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 27, 2023
San Francisco, California
Before: BOGGS,** M. SMITH, and OWENS, Circuit Judges.
Jose Daniel Gomez-Menendez, a Salvadoran national, entered the United
States and applied for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). An immigration judge (IJ) denied his
applications and the Board of Immigration Appeals (BIA) affirmed. Exercising
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
APR 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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jurisdiction under 8 U.S.C. § 1252, we deny Gomez-Menendez’s petition for review.
We review the agency’s factual findings for substantial evidence, treating
them as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Flores Molina v. Garland, 37 F.4th 626, 632 (9th Cir.
2022) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review legal issues, including the
agency’s purported failure to consider the cumulative effect of past harms, de novo.
Salguero Sosa v. Garland, 55 F.4th 1213, 1218–19 (9th Cir. 2022).
To be eligible for asylum, Gomez-Menendez must demonstrate either that he
was persecuted in the past, which raises a rebuttable presumption of future
persecution, or that he has a “well-founded fear” of persecution in the future. Flores
Molina, 37 F.4th at 633.1
1. The agency correctly concluded that Gomez-Menendez did not suffer
past persecution.2 “Persecution . . . is an extreme concept that means something
considerably more than discrimination or harassment.” Sharma v. Garland, 9 F.4th
1052, 1060 (9th Cir. 2021) (quoting Donchev v. Mukasey, 553 F.3d 1206, 1213 (9th
Cir. 2009)). In analyzing whether past harm constitutes persecution, we consider,
1 Gomez-Menendez’s petition does not challenge the agency’s denial of withholding
of removal and CAT relief.
2 The standard of review that we have applied to such conclusions has varied. See
Singh v. Garland, 57 F.4th 643, 651–52 (9th Cir. 2022). Because we would reach
the same conclusion under any standard of review, we need not discuss whether a
more deferential standard should apply. Cf. Fon v. Garland, 34 F.4th 810, 813 n.1
(9th Cir. 2022) (applying the more deferential standard in granting a petition).
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among other things, “physical violence and resulting serious injuries, frequency of
harm, [and] specific threats combined with confrontation.” Id. at 1063. Mere threats
rarely amount to persecution, unless they are “repeated, specific and ‘combined with
confrontation or other mistreatment.’” Duran-Rodriguez v. Barr, 918 F.3d 1025,
1028 (9th Cir. 2019) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000));
Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004) (“[T]hreats may be
compelling evidence of past persecution, particularly when they are specific and
menacing and are accompanied by evidence of violent confrontations, near-
confrontations and vandalism.”).
While Gomez-Menendez testified that he was threatened on three occasions,
his description of these threats, which occurred over a period of almost three years,
varied considerably. For example, in the declaration that he filed in support of his
asylum application, Gomez-Menendez described the first threat as a threat to “beat
[him] up,” but in his testimony characterized it as a death threat.
More importantly, the record does not compel the conclusion that the threats
here were combined with violent confrontation. The first two threats were not
combined with physical mistreatment of any kind. The third threat was followed by
an attempt on Gomez-Menendez’s life. Gomez-Menendez claims that the political
opponent with whom he had clashed was responsible for the shooting, but he also
conceded—in his report to the Salvadoran police, his declaration, and his testimony
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before the IJ—that he could not see the faces of the men who shot at him. Substantial
evidence thus supports the IJ’s conclusion that the threats and the shooting were not
related. Based on this conclusion, the IJ did not err in finding that Gomez-Menendez
did not suffer persecution.
Gomez-Menendez argues that the IJ erred by disaggregating the threats and
the shooting incident. Gomez-Menendez is correct that the agency must consider the
cumulative effect of his past-persecution evidence. See Salguero Sosa, 55 F.4th at
1218. But the IJ’s decision indicates that she considered all the evidence in the
record. Summarizing her analysis, she stated, “the threats that the respondent
received and the gunshot do not support a finding of past persecution.” And, as
explained above, the IJ reasonably rejected Gomez-Menendez’s attempt to link the
shooting to the earlier threats.
2. Substantial evidence supports the agency’s conclusion that Gomez-
Menendez does not have a well-founded fear of persecution. To be well-founded, a
fear must be objectively reasonable. Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1062 (9th Cir. 2017) (en banc). A ten-percent chance of persecution is sufficient.
Mendoza-Linares v. Garland, 51 F.4th 1146, 1152 (9th Cir. 2022).
The record does not compel the conclusion that Gomez-Menendez’s fear of
future persecution is objectively reasonable. While Gomez-Menendez was
threatened on several occasions, the last of those threats occurred almost ten years
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before his asylum hearing. Since the shooting was not clearly related to the threats,
substantial evidence supports the agency’s conclusion that Gomez-Menendez is
unlikely to suffer harm on account of his political opinion if removed to El Salvador.
Gomez-Menendez complains that it is fundamentally unfair for the agency to
rely on the passage of time to reject his future-persecution claim. It is true that we
have previously rejected the agency’s attempt to use its own administrative delay to
rebut a noncitizen’s presumption of future persecution. See Salazar-Paucar v. INS,
281 F.3d 1069, 1077 (9th Cir. 2002). But that does not change our rule that “the age
of the threats” that a noncitizen received is “relevant to our evaluation of the
reasonableness of [his] fear.” Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th
Cir. 2006). And, unlike in Salazar-Paucar, the agency here did not use the passage
of time to rebut a presumption of future persecution, because it correctly found that
Gomez-Menendez had not established past persecution.
The stay of removal remains in place until the mandate issues.
PETITION DENIED.
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