NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 20-2166 __________ SANTOS REY DAVID GARCIA-SUCHITE, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA __________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A201-704-307) Immigration Judge: Kuyomars Q. Golparvar __________ Submitted Under Third Circuit L.A.R. 34.1(a) on January 12, 2021 Before: AMBRO, KRAUSE, and PHIPPS, Circuit Judges (Filed: January 14, 2021) __________ OPINION * __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge. Santos Rey David Garcia-Suchite, a gay indigenous man from Guatemala, seeks our review of a decision by the Board of Immigration Appeals (BIA) affirming the denial of his application for asylum and withholding of removal under the Immigration and Nationality Act (INA) and protection under the Convention Against Torture (CAT). He urges that the BIA committed three errors: (1) finding that he does not have a well- founded fear of persecution on account of protected grounds; (2) finding that the Guatemalan government would not be unwilling or unable to protect him; and (3) determining that he did not face a likelihood of torture sufficient for deferral under CAT. Because substantial evidence supports the BIA’s conclusion that Garcia-Suchite failed to establish past persecution or a well-founded fear of future persecution and because he has not carried his burden of demonstrating a likelihood of future torture, we will deny the petition for review. I. DISCUSSION 1 A. Asylum and Withholding of Removal 1 The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b), 1208.31(e), and 1240.15, and we exercise jurisdiction under 8 U.S.C. § 1252(a). Where, as here, “the BIA adopted and affirmed the IJ’s decisions and orders as well as [conducted] an independent analysis, we review both the IJ’s and the BIA’s decisions and orders,” Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 340–41 (3d Cir. 2016), and we look to the IJ’s opinion “only where the BIA has substantially relied on that opinion,” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). We review legal conclusions de novo, Doe v. Att’y Gen., 956 F.3d 135, 141 (3d Cir. 2020), and we defer to factual findings “if they are supported by reasonable, substantial, and probative evidence in the record considered as a whole,” S.E.R.L. v. Att’y Gen., 894 F.3d 535, 543 (3d Cir. 2018). 2 Garcia-Suchite argues that he was persecuted based on his sexual orientation and indigenous background, entitling him to “a rebuttable presumption of a ‘well-founded fear of future persecution’ on the same basis” if removed. Doe v. Att’y Gen., 956 F.3d 135, 150 (3d Cir. 2020). To be eligible for this presumption, an applicant must show “(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.” ...
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