NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BYRON PICON-ORELLANA, No. 22-1019 Agency No. Petitioner, A206-438-378 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2023 ** San Francisco, California Before: MILLER and KOH, Circuit Judges, and MOLLOY, District Judge.*** Byron Picon-Orellana, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of the immigration judge’s (IJ) order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture * 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 Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. (CAT). We have jurisdiction under 8 U.S.C. § 1252. “Where the BIA conducts its own review of the evidence and law, rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020) (quoting Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)). “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). However, whether a group constitutes a particular social group “is a question of law we review de novo.” Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (citation omitted). We deny the petition. 1. Substantial evidence supports the BIA’s decision affirming the denial of asylum and withholding of removal. A. Substantial evidence supports the BIA’s determination that the harm suffered by Picon did not rise to the level of past persecution. “Persecution . . . is an extreme concept that means something considerably more than discrimination or harassment,” and is analyzed considering “physical violence and resulting serious injuries, frequency of harm, [and] specific threats combined with confrontation.” Sharma v. Garland, 9 F.4th 1052, 1060, 1063 (9th Cir. 2021) (citation omitted). Picon’s evidence of past persecution was limited to one incident wherein Picon was kicked or hit resulting in bruises. This harm was not “so menacing as to cause significant actual suffering or 2 harm”; thus, “we cannot say that the evidence compels the conclusion that [Picon] suffered past persecution.” Duran-Rodriguez, 918 F.3d at 1028 (citation omitted); see also Gu v. Gonzales, 454 F.3d 1014, 1019–21 (9th Cir. 2006) (holding that a single incident of detention where petitioner was struck in the back with a rod approximately ten times and required to report to police four or five times did not compel a finding of persecution). B. Substantial evidence supports the BIA’s conclusion that Picon …
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