MARIN ORTEGA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-08-27No. No. 20-70418

Summary · law.co

Holding. The petition for review is denied. The agency's factual findings are supported by substantial evidence, and Marin Ortega failed to establish entitlement to withholding of removal or Convention Against Torture relief.

Miguel Roberto Marin Ortega, a Guatemalan national, sought review of the Board of Immigration Appeals' decision upholding an immigration judge's denial of his application for withholding of removal and relief under the Convention Against Torture. Marin Ortega argued that the BIA misstated the harm he experienced, failed to properly analyze the likelihood of future persecution, and did not adequately address his arguments regarding the applicable legal standard. He also contended the BIA misstated the record and overlooked evidence supporting his CAT claim.

The court found that the record did not support Marin Ortega's assertions. Substantial evidence demonstrated he had not established a clear probability of future persecution or shown that torture was more likely than not if he returned to Guatemala. The court further held that the BIA properly applied the correct legal standard and that agencies are not required to address every argument or piece of evidence presented. Accordingly, both his withholding of removal claim and his CAT relief claim failed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the record supports a finding of clear probability of future persecution
Whether substantial evidence supports denial of CAT relief
Whether the BIA properly applied the applicable legal standard for withholding of removal
Whether the agency erred in addressing petitioner's arguments and evidence

Procedural posture

Marin Ortega petitioned for review of the BIA's decision affirming the immigration judge's denial of withholding of removal and CAT relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Miguel Roberto Marin Ortega, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his appeal from an immigration judges (“IJ”) decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the petition for review.

We reject as unsupported by the record Marin Ortegas contention that the BIA misstated the harm he experienced in Guatemala.

The record also does not compel the conclusion that Marin Ortega established a clear probability of future persecution. See Nagoulko v. I.N.S., 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too speculative”). We reject as unsupported by the record Marin Ortegas contention that the BIA ignored his argument that the IJ erred in her future persecution analysis.

Marin Ortegas request for a remand, raised in his opening brief, based on the BIAs reference to the “reasonable possibility” standard, is denied because the BIA adopted and affirmed the IJs decision under Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and the IJ cited the applicable “clear probability” standard. See Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010) (where BIA adopted and affirmed IJ decision citing Burbano, the court looked through the BIAs decision and treated the IJs decision as the final agency decision).

Thus, Marin Ortegas withholding of removal claim fails.

Substantial evidence supports the agencys denial of CAT relief because Marin Ortega failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative).

Marin Ortegas contentions that the BIA misstated the record and the agency erred by failing to mention evidence fail as unsupported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim); see also Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency need not write an exegesis on every contention).

PETITION FOR REVIEW DENIED.