FILED NOT FOR PUBLICATION MAR 10 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MANUEL FONTES GARCIA, No. 20-70729 Petitioner, Agency No. A201-564-438 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 6, 2023** Las Vegas, Nevada Before: CLIFTON, BYBEE, and BENNETT, Circuit Judges. Petitioner Manuel Fontes Garcia, a native and citizen of Cuba, seeks review of the Board of Immigration Appeals’ (BIA) decision denying his application for asylum. The BIA affirmed the immigration judge’s (IJ) determination that Fontes * 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). Garcia was ineligible for asylum because the treatment he complained of was prosecution, not persecution, and he failed to establish past persecution or a well- founded fear of future persecution. Because substantial evidence supports finding that Fontes Garcia’s treatment was not persecution due to political opinion we deny the petition. We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA affirms the IJ and incorporates the IJ’s reasoning, we review both the decision of the BIA and the IJ. Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir. 2006). We review factual findings, including whether an applicant demonstrated asylum eligibility, for substantial evidence. Rodrigues Tornes v. Garland, 993 F.3d 743, 750 (9th Cir. 2021). The BIA’s findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). To establish eligibility for asylum, an applicant must demonstrate either past persecution or a well-founded fear of future persecution and that the “persecution was or will be on account of” a protected ground (race, religion, nationality, membership in a particular social group, or political opinion). Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011); see 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). “[T]he protected ground cannot play a minor role . . . [I]t cannot 2 be incidental, tangential, superficial, or subordinate to another reason for harm.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (citation omitted). Importantly, “[w]e have long distinguished persecution from prosecution,” Li v. Holder, 559 F.3d 1096, 1108 (9th Cir. 2009), and “[p]ersons avoiding lawful prosecution for common crimes are not ordinarily deemed refugees.” Chanco v. INS, 82 F.3d 298, 301 (9th Cir. 1996). Furthermore, “[i]t is only where there appears to be no other logical reason for the persecution at issue that the IJ may draw the inference that the police investigation is a subterfuge for political harassment.” Dinu v. Ashcroft, 372 F.3d 1041, 1045 (9th Cir. 2004) (internal quotation marks and citation omitted). Substantial evidence supports the IJ and BIA’s conclusion that the treatment Fontes Garcia complains of was prosecution rather than persecution on the basis of …
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