Roberto Gomez-Siliceo v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERTO CARLOS GOMEZ-SILICEO, No. 18-72908 Petitioner, Agency No. A200-565-648 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 5, 2022** Pasadena, California Before: M. SMITH, COLLINS, and LEE, Circuit Judges. * 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). Roberto Gomez-Siliceo, a native and citizen of Mexico, seeks review of a decision from the Board of Immigration Appeals (BIA) affirming the denial of his requests for withholding of removal and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition. Gomez states he fears he will be persecuted and/or tortured if removed to Mexico because of his membership in a particular social group comprised of former Mexican military personnel with special training who have refused to join the Zetas cartel. The IJ declined to make a credibility determination but concluded that even if Gomez’s testimony were credible, he failed to establish he is entitled to relief. The BIA affirmed. We review the BIA’s legal conclusions de novo and the factual findings underlying those conclusions for substantial evidence. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Under this standard, we must uphold the agency’s factual determination unless any reasonable trier of fact “would be compelled” to conclude the contrary based on the evidence in the record. Villavicencio v. Sessions, 904 F.3d 658, 664 (9th Cir. 2018) (quotation omitted). When assessing whether a decision is supported by substantial evidence, this court’s review is limited to those grounds “explicitly relied upon” by the BIA. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). Where the BIA agrees with the IJ’s 2 reasoning, “we review both decisions.” Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). 1. Substantial evidence supports the agency’s denial of withholding of removal. To qualify for withholding of removal, an applicant must show a “clear probability” of future persecution because of his “race, religion, nationality, membership in a particular social group, or political opinion.” Garcia v. Wilkinson, 988 F.3d 1136, 1146 (9th Cir. 2021). “A clear probability exists if it is more likely than not the person will be persecuted upon return.” Aden v. Wilkinson, 989 F.3d 1073, 1086 (9th Cir. 2021) (quotation marks and citation omitted). If a petitioner can show he has suffered past persecution, a clear probability of future persecution is presumed. See id.; 8 C.F.R. § 1208.16(b)(1)(i). The agency did not err in finding that the verbal threats Gomez received over the phone on approximately four occasions, in addition to being followed, did not constitute past persecution. See Lim v. INS, …

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