Anthony Denilson Duran, a native and citizen of Guatemala, sought protection in the United States by applying for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). His applications were denied by an immigration judge, and the Board of Immigration Appeals (BIA) dismissed his appeal, upholding the denial. Duran then petitioned the Ninth Circuit for review. The underlying dispute centered on whether Duran's criminal history and his fears of returning to Guatemala barred him from receiving any form of relief from deportation.
The panel reviewed the BIA's decision for abuse of discretion regarding the 'particularly serious crime' determination and for substantial evidence regarding the CAT claim. First, the court addressed withholding of removal. Under 8 U.S.C. § 1231(b)(3)(B), a petitioner is ineligible if convicted of a particularly serious crime. The court held that the BIA reasonably concluded Duran's conviction for shooting at an occupied vehicle in violation of California Penal Code § 246 was particularly serious. The court noted that Duran, while under the influence of controlled substances, discharged an illegally purchased firearm at an occupied vehicle on a freeway during a road-rage incident, presenting a significant danger of causing serious injury or death. Duran argued he had been rehabilitated, but the court rejected this because he failed to raise the argument before the agency, meaning it was unexhausted. Second, the court addressed asylum. Duran had not challenged the immigration judge's finding that his application was untimely before the BIA, nor did he present the particular social groups he now claims. Consequently, the court found he failed to exhaust these claims and declined to consider them. Third, regarding CAT relief, the petitioner must show it is more likely than not that he will be tortured if removed. The court found substantial evidence supported the BIA's determination that Duran did not meet this standard. Although Duran testified he feared targeting by individuals who believed he was a gang member due to tattoos or his American perception, the court held that generalized country conditions evidence does not demonstrate a particularized risk. The court cited that Duran had never been harmed or threatened in Guatemala before being brought to the U.S. as a young child, and his fear was speculative.
The petition for review is denied, and the Board of Immigration Appeals' order denying all forms of relief remains in effect. Duran is subject to removal. The decision reinforces the strict exhaustion requirements in immigration appeals, barring arguments not raised before the agency, and clarifies that speculative fears of gang-related violence without particularized evidence of risk are insufficient to meet the CAT standard.
Podcast (federal-narrative-summaries): Play in new window | Download