Elmer E. Hernandez-Tovar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER E. HERNANDEZ-TOVAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70469
Agency No. A208-896-910
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 8, 2023**
Pasadena, California
Before: KLEINFELD, HURWITZ, and R. NELSON, Circuit Judges.
Elmer Hernandez-Tovar petitions for review of the Board of Immigration
Appeals’s decision affirming the immigration judge’s denials of his applications
for asylum and withholding of removal. We have jurisdiction pursuant to 8 U.S.C.
FILED
MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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§ 1252(a)(1). The Board conducted its own review of evidence and law, so we
review its decision. Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020). We deny
the petition.
The Board correctly decided that the threats Hernandez-Tovar received did
not rise to the level of past persecution.1 Under our precedent, “[t]hreats standing
alone . . . constitute past persecution in only a small category of cases, and only
when the threats are so menacing as to cause significant actual suffering or harm.”
Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (internal quotation marks and
citation omitted). Although the immigration judge found Hernandez-Tovar’s
account of the threats credible, he did not claim to have experienced actual
suffering or harm as a result of the threats. His case, therefore, does not fall within
the small category sufficient to establish past persecution.
Substantial evidence supports the agency’s factual determination that
Hernandez-Tovar failed to establish a nexus between his fear of future persecution
and his religious belief. Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir.
1 We do not decide whether the Board’s determination is subject to de novo
or substantial-evidence review, because it passes both standards. Cf. Singh v.
Garland, 57 F.4th 643, 652 (9th Cir. 2022) (“[W]e need not address whether de
novo review should apply, or discuss the nuances of the two standards, because the
harm Singh suffered rose to the level of persecution under the more deferential
substantial evidence standard of review.”) (internal quotations and alteration
omitted).
2

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2021) (standard of review). The record shows that the gang threatened Hernandez-
Tovar because he refused to be their informant. Although Hernandez-Tovar once
cited his religious belief as a reason for his not complying with the gang’s order,
substantial evidence supports the proposition that the gang was motivated by his
refusal to be their informant, and not because of the religious reason he gave. The
failure to establish any nexus between his feared persecution and his religious
belief defeats both his asylum and withholding claims. See Barajas-Romero v.
Lynch, 846 F.3d 351, 360 (9th Cir. 2017).
The stay of removal remains in place until the mandate issues.
PETITION DENIED.
3

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