Petronilo Lopez Tomas v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT PETRONILO LOPEZ TOMAS; JENRRY No. 17-72868 ALEXIS LOPEZ TOMAS, Agency Nos. A208-124-161 Petitioners, A208-124-163 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 10, 2023** Pasadena, California Before: CALLAHAN, R. NELSON, and H.A. THOMAS, Circuit Judges. Petitioners Petronilo LopezTomas and Jenrry Lopez-Tomas, brothers and native citizens of Guatemala, seek review of an order of the Board of Immigration Appeals (BIA) denying their applications for asylum, withholding of removal, and * 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). protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Petitioners’ challenge to the jurisdiction of the immigration court is foreclosed by our opinion in United States v. Bastide-Hernandez, 39 F.4th 1187, 1188 (9th Cir. 2022) (en banc) (“[T]he failure of [a Notice to Appear] to include time and date information does not deprive the immigration court of subject matter jurisdiction.”). The Immigration Judge (IJ) thus had jurisdiction over Petitioners’ case even though they were served with Notices to Appear that did not specify the time or date of their initial hearing. 2. Where the BIA agrees with the conclusions of the IJ, the Ninth Circuit reviews both decisions. See Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018). The agency’s decision is reviewed under the substantial evidence standard, Rodriguez-Ramirez v. Garland, 11 F.4th 1091, 1093 (9th Cir. 2021), which provides that the agency’s findings of fact are considered “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Ruiz- Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (quoting Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006)). To be eligible for asylum, Petitioners must show a well-founded fear of persecution based on “race, religion, nationality, membership in a particular social group, or political opinion.” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish past persecution, 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.” Navas v. INS, 217 F.3d 646, 655–56 (9th Cir. 2000). We agree with the BIA that the threat and mistreatment received by Petitioners did not rise to the level of past persecution. Petitioners’ cumulative reports of persecution amount to two instances of robbery, one beating that Petitioners did not claim left lasting injury, a possible gunshot in Jenrry’s direction, and an unsubstantiated threat against their …

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