Jesus Pablo De Pablo v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JESUS PABLO DE PABLO, No. 18-72995 Petitioner, Agency No. A098-501-346 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 3, 2021** Pasadena, California Before: OWENS and LEE, Circuit Judges, and SIMON,*** District Judge. Petitioner Jesus Pablo de Pablo, a native and citizen of Guatemala and an indigenous Mayan, seeks review of a decision from the Board of Immigration * 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 Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. Appeals (BIA) affirming the denial of Petitioner’s application for withholding of removal and for protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review. Here, the BIA affirmed the findings and conclusions of an Immigration Judge (IJ) and made additional observations expressing agreement with the IJ. Thus, we review the decisions of both the IJ and the BIA. See Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013). We review questions of law and legal conclusions de novo and findings of fact for substantial evidence. See Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010). “Under the substantial evidence test, we must uphold the IJ’s findings, ‘if supported by reasonable, substantial and probative evidence on the record considered as a whole.’” Id. (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). To reverse these factual findings, we “must find that the evidence not only supports that conclusion, but compels it . . . .” Elias-Zacarias, 502 U.S. at 481 n.1 (emphasis in original); see also Villavicencio v. Sessions, 904 F.3d 658, 663-64 (9th Cir. 2018) (citation omitted). We conclude that substantial evidence supports the decisions of both the IJ and the BIA. Petitioner unlawfully entered the United States in 2004 and was removed. He did not seek relief from removal. In 2014, Petitioner unlawfully returned to the United States and was immediately detained. This time, Petitioner expressed a fear of returning to Guatemala, and an asylum officer who interviewed Petitioner 2 determined that his fear was sufficiently reasonable to refer him into a “withholding-only” proceeding before an IJ. See 8 C.F.R. §§ 208.31(a), (e), (g)(2), 241.8(e). During that hearing, Petitioner, assisted by counsel, presented evidence that Petitioner had supported the construction of a controversial mining venture in his hometown and, in retaliation, was kidnapped by former guerrillas opposed to that venture who extracted a ransom for Petitioner’s return. Petitioner also testified that he fears the former guerillas would harm him again upon his return. Petitioner explained that although his spouse and five children …

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