Burkman Elvis Anderson v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BURKMAN ELVIS ANDERSON,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-395
Agency No. A097-328-997
MEMORANDUM*
On Petition for Review of an Order of the
Immigration Judge
Submitted February 13, 2024**
Pasadena, California
Before: CALLAHAN, IKUTA, Circuit Judges, and LASNIK,*** District Judge.
We write primarily for the parties who are familiar with the facts. The
Department of Homeland Security (“DHS”) reinstated a removal order entered
* 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).
*** The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
FILED
FEB 23 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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against the petitioner, Burkman Anderson, on March 23, 2023. Because Anderson
expressed fear of returning to Jamaica, he was referred to an asylum officer for a
reasonable fear interview and determination to ascertain whether he should be given
an opportunity for a merit hearing on his application for withholding of removal.
After a preliminary interview, the officer found no evidence of reasonable fear based
on a protected ground. An immigration judge (“IJ”) affirmed. Anderson now
petitions for review of the IJ’s negative reasonable fear determination and moves to
stay removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny
Anderson’s petition.1
A. Review of Reasonable Fear Determination
We review the IJ’s rulings for substantial evidence, upholding the IJ’s
determination unless “any reasonable adjudicator would be compelled to conclude
to the contrary.” Hermosillo v. Garland, 80 F.4th 1127, 1131 (9th Cir. 2023)
(quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014)). Reasonable
fear at the screening stage exists when a petitioner shows a “reasonable possibility”
that he (1) would be persecuted on account of his “race, religion, nationality,
membership in a particular social group or political opinion,” or (2) would be
tortured in his country of removal “by or at the instigation of or with the consent or
1 An order by the IJ affirming the asylum officer’s negative reasonable fear
determination makes the Petitioner’s reinstatement order final, 8 C.F.R. §
208.31(g)(1), and therefore subject to our review under 8 U.S.C. § 1252(a)(1).

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acquiescence of a public official or other person acting in an official capacity.” Id.
at 1129 (citation omitted). “Persecution encompasses the infliction of suffering or
harm” based on a protected ground in a way regarded as “offensive.” Sael v.
Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004) (quoting Knezevic v. Ashcroft, 367 F.3d
1206, 1211 (9th Cir. 2004)). Torture is “severe pain or suffering, whether physical
or mental” to punish, obtain a confession, intimidate, or coerce or for any
discriminatory reason. Kamalthas v. I.N.S., 251 F.3d 1279, 1282 (9th Cir. 2001)
(quoting 8 C.F.R. § 208.18(a)(1)).
Anderson’s evidence of persecution and torture is sparse and speculative at
best. Anderson’s testimony cannot establish that the incidents of violence against
his sons, including the murder of his son in 2016, were motivated by political reasons
or any other protected ground. Anderson testified that he did not know the “full
truth” of whether his son was murdered for political reasons, but he believed that it
was because his son was murdered in a neighborhood that was frequented by “JLP
activists.” Anderson’s eldest son was stabbed in a water dispute where he was the
initial aggressor, and his youngest son was stabbed defending one of his friends in a
fight. Anderson also testified that he was stabbed 25 years ago by a supporter of an
opposing political party, but his aggressor was killed by the police, and nothing on
the record reflects a similar incident since. The fact that Anderson’s aggressor was

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killed by police undermines Anderson’s claim that a public official acquiesced to the
violence inflicted on him by an opposing political party.
Anderson also described a dispute over farmland and water, neither of which
is a protected ground. Anderson’s testimony does not establish persecution, let alone
torture with the consent or acquiescence of a person acting in an official capacity.
Anderson fails to show torture even considering the aggregate risk of harm. Because
the record does not compel us to reach a different result than that reached by the IJ,
Anderson’s petition for review is denied.
B. Motion to Stay Removal
Because we deny Anderson’s petition for review, we deny his motion to stay
removal. See Nken v. Holder, 556 U.S. 418, 434 (2009); Sharma v. Garland, 9 F.4th
1052, 1059–60 (9th Cir. 2021).
PETITION FOR REVIEW AND MOTION TO STAY REMOVAL DENIED.

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