Diego Saul Rivas-Monge, a native and citizen of El Salvador, sought protection in the United States by applying for asylum, withholding of removal, and relief under the Convention Against Torture. He claimed he faced harm due to political pressure and gang violence. Specifically, he testified to three incidents: being stopped by soldiers and a policeman who threatened him for supporting the FMLN political party; being confronted by 18th Street gang members who demanded he sell them phones with registered chips and later beat him and stole his computer; and receiving a death threat after reporting the gang's assault to the police. The immigration judge and the Board of Immigration Appeals (BIA) denied his applications, finding that the harms he experienced did not amount to persecution and that he did not face a well-founded fear of future harm. Rivas-Monge petitioned the Ninth Circuit for review of these decisions.
The Ninth Circuit reviewed the BIA's legal conclusions de novo but applied the highly deferential substantial evidence standard to the agency's factual findings. Under this standard, the agency's findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. The court first addressed whether Rivas-Monge established past persecution. While the court acknowledged the incidents were frightening, it held that the record did not compel the conclusion that the harms rose to the level of persecution. The court noted that persecution is an extreme concept requiring more than discrimination or harassment. Rivas-Monge did not suffer serious injuries or serious physical violence akin to the beatings or torture previously found to compel a finding of past persecution. The court cited cases where minor physical assaults or repeated beatings without severe injury were insufficient to constitute persecution. Next, the court evaluated the claim of future persecution. The court found substantial evidence supported the BIA's conclusion that Rivas-Monge failed to establish an objectively reasonable possibility of persecution upon return. The record showed that the soldiers and police officer who harassed him were removed from his town after he reported the incident, and he never saw them again. Furthermore, his mother has resided in El Salvador unharmed for years, and his father has traveled back twice without incident. The court stated that the ongoing safety of family members undermines a reasonable fear of future persecution. Because he failed to establish past or future persecution, he was ineligible for asylum and, consequently, withholding of removal, which requires a more stringent showing. Finally, regarding the Convention Against Torture (CAT), the court held that the petitioner must show it is more likely than not that he will be tortured with government acquiescence. The court reasoned that since the agency correctly concluded his past mistreatment did not rise to the level of persecution, it necessarily fell short of the definition of torture. Additionally, his generalized country conditions evidence failed to show a particularized, ongoing risk of future torture, and his fear was deemed speculative.
The Ninth Circuit's denial of the petition leaves the Board of Immigration Appeals' order denying Rivas-Monge's claims for asylum, withholding of removal, and CAT relief in place. Rivas-Monge remains subject to removal from the United States. The decision reinforces the high threshold for proving persecution in the Ninth Circuit, emphasizing that frightening or harassing incidents do not automatically qualify as persecution without severe physical injury or extreme circumstances. It also highlights that the safety of family members in the country of origin is a significant factor in undermining claims of future fear.
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