Fernando Contreras Villanueva v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO CONTRERAS
VILLANUEVA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-958
Agency No.
A206-430-612
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 12, 2024**
Pasadena, California
Before: TASHIMA, CALLAHAN, and JOHNSTONE, Circuit Judges.
Petitioner Fernando Contreras Villanueva (Contreras), a citizen and native of
Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) decision
dismissing his appeal of the Immigration Judge’s (IJ) denial of asylum,
* 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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withholding of removal, and protection under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.
The court reviews asylum, withholding of removal, and CAT claims under
the deferential substantial evidence standard, and “must uphold the agency
determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Where, as here, “the BIA
expressed agreement with the reasoning of the IJ, this court reviews both the IJ and
the BIA’s decisions.” Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013).
1. To qualify for asylum, Contreras must “demonstrate that he has
suffered past persecution or has a well-founded fear of future persecution.”
Duran-Rodriguez, 918 F.3d at 1028 (citing 8 U.S.C. § 1101(a)(42)). The BIA
agreed with the IJ’s determination that Contreras had not established harm rising to
the level of past persecution and found no clear error in the IJ’s finding of no well-
founded fear of future persecution. Contreras challenges these findings.1
Contreras argues the harm he suffered in the past cumulatively rises to the level of
persecution because he faced repeated and specific threats that were combined with
confrontation, and the fact he was beaten repeatedly shows that the alleged
1 Contreras also challenges the IJ’s findings regarding his proposed social groups
and ability to relocate internally. However, the BIA did not rely on these grounds
in denying his appeal and therefore those arguments are not properly before the
court. See Zarate v. Holder, 671 F.3d 1132, 1138 (9th Cir. 2012) (“[O]ur review is
limited to the grounds actually relied upon by the BIA.”).

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persecutors had the ability to carry out their threats. However, under the
substantial evidence standard,2 Contreras does not adequately challenge the
agency’s finding that the threats were not sufficiently menacing in light of the fact
that the injuries he suffered were relatively minor. See Duran-Rodriguez, 918 F.3d
at 1026–29; Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). And
Contreras does not address the agency’s reliance on his continued presence in
Mexico for a year after the second attack without incident before leaving to the
United States or the fact that his son (who was also involved in both
confrontations) currently lives in Mexico apparently without incident. See id.
(noting petitioner lived in the same city for six months following a physical attack
without additional harm which cut against a finding of past persecution); Sharma v.
Garland, 9 F.4th 1052, 1066 (9th Cir. 2021) (“The ongoing safety of family
members in the petitioner’s native country undermines a reasonable fear of future
persecution.”). Overall, the evidence does not compel a finding of persecution or
otherwise indicate the agency’s findings were not supported by substantial
evidence.
2 The Government argues that substantial evidence review applies to the BIA’s
conclusion that the harm suffered by a noncitizen is insufficient to rise to the level
of persecution. Contreras does not dispute that substantive evidence review
applies. Accordingly, we apply it here.

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2. Because Contreras failed to establish persecution under his asylum
claim, his claim for withholding of removal also fails. Silva v. Garland, 993 F.3d
705, 719 (9th Cir. 2021) (“The ‘more likely than not’ standard for withholding of
removal is ‘more stringent’ than the ‘reasonable possibility’ standard for asylum,
and therefore an applicant who is unable to show a ‘reasonable possibility’ of
future persecution ‘necessarily fails to satisfy the more stringent standard for
withholding of removal.’” (quoting Mansour v. Ashcroft, 390 F.3d 667, 673 (9th
Cir. 2004))).
3. To qualify for CAT protection, Contreras must show it is more likely
than not he would be tortured upon his return to Mexico. Torture is defined as “any
act by which severe pain or suffering . . . is intentionally inflicted on” another
person “by or at the instigation of or with the consent or acquiescence of a public
official.” Sharma, 9 F.4th at 1067 (quoting 8 C.F.R. § 208.18(a)(1)). Contreras,
citing a 2019 Mexico Country Report, argues that the Mexican government’s
willful blindness and refusal to protect its citizens from violence is tantamount to
acquiescence of a public official. However, Contreras does not challenge the
agency’s finding that there was not a clear probability he would face harm rising to
the level of torture. In any event, that argument would be unavailing as “the BIA
could reasonably conclude that [where] past harm did not rise to the level of

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persecution, it necessarily falls short of the definition of torture.” Id. (citing
Hussain v. Rosen, 985 F.3d 634, 650 (9th Cir. 2021)).
The petition is DENIED.

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