Argueta v. Garland

1

JOEL ANTONIO ARGUETA, Petitioner, v. MERRICK B. GARLAND, U.S. Attorney General, Respondent.

No. 21-849

United States Court of Appeals, Ninth Circuit

March 16, 2023

NOT FOR PUBLICATION

Submitted March 14, 2023 ^[**] Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A094-311-557

Before: BRESS and MENDOZA, Circuit Judges, and ERICKSEN ^[***] District Judge.

MEMORANDUM ^[*]

Joel Antonio Argueta, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge (IJ) order denying his application for protection under the Convention Against Torture (CAT). ^[1] We review de novo the BIA's determinations on questions of law. Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013). The BIA's factual findings are reviewed for substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1066 (9th Cir. 2021). "Under this standard, we must uphold the agency determination unless the evidence compels a contrary conclusion." Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Because the BIA conducted "its own review of the evidence and law, rather than adopting the IJ's decision, our review is limited to the BIA's decision." Mareina v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (quoting Zumel v. Lynch, 803 F.3d 463, 471 (9th Cir. 2015)). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Substantial evidence supports the BIA's denial of CAT relief. "To qualify for CAT relief, a petitioner must show that [he] more likely than not will be tortured if [he] is removed to [his] native country." Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Torture is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . for any reason based on discrimination of any kind, when such pain or suffering is inflicted 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)).

Neither the country condition reports-which the BIA specifically considered-nor any other evidence in the record compels the conclusion that Argueta more likely than not will be tortured if he is removed to El Salvador. The BIA reasoned that the record did not support that the government of El Salvador condoned attacks on Christians or that Argueta faced a risk of torture for being Christian. In addition, the BIA found that because Argueta did not identify himself as a member of the LGBTI community, did not claim he was perceived as such except during one attack, and did not indicate he feared future harm on the basis of this perception, Argueta did not establish a likelihood of torture on this basis. Substantial evidence supports the BIA's determinations.

2. The BIA did not adopt the IJ's adverse credibility determination, and it therefore falls outside the scope of our review. Mareina, 917 F.3d at 1123.

PETITION DENIED.

---------

^[*] This disposition is not...