NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSWAL ASAEL PONCE, No. 20-70252
Petitioner, Agency No. A201-680-828
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 6, 2021**
Portland, Oregon
Before: M. MURPHY,*** PAEZ, and BENNETT, Circuit Judges.
Oswal Ponce seeks review of a decision by the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an immigration judge’s (“IJ”)
*
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 R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
denial of asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Exercising jurisdiction under
8 U.S.C. § 1252, we deny in part and dismiss in part Ponce’s petition.
We review “de novo the BIA’s determinations on questions of law and
mixed questions of law and fact.” Conde Quevedo v. Barr, 947 F.3d 1238,
1241 (9th Cir. 2020). We review for substantial evidence the BIA’s factual
findings. Id. at 1241–42. Under this standard, “[t]he BIA’s factual findings
are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Villavicencio v. Sessions, 904 F.3d 658, 663–64
(9th Cir. 2018) (internal quotation marks omitted). We review for
substantial evidence the decision that an applicant failed to establish past
persecution or the existence of a well-founded fear of future persecution.
Karapetyan v. Mukasey, 543 F.3d 1118, 1124–25 (9th Cir. 2008) (citing
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). The same standard
applies to the determination that an applicant has failed to demonstrate it is
more likely than not he would be tortured if returned to his country of
origin. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014).
1. Ponce asserts the BIA erred in resolving his request to take
administrative notice. He argues the BIA ignored his request, leaving it
2
unresolved. Alternatively, assuming the BIA denied the request, he asserts
it abused its discretion. Neither aspect of his argument has merit.
In contrast to Ponce’s assertion, the BIA resolved his request that it
take administrative notice. The BIA stated that, as an appellate body, it
lacked authority to consider new evidence bearing on the factual question
whether Ponce has a well-founded fear of persecution should he be returned
to Honduras. The BIA concluded Ponce’s request to take administrative
notice fell outside the parameters of the governing rule and BIA precedent
by attempting to create a new record upon which to judge the IJ’s factual
determinations.
The BIA did not abuse its discretion in so ruling. Ponce does not cite
any authority indicating the BIA must take notice of hundreds of pages of
documentary evidence, almost all of which was available to him at the time
of his asylum hearing. Nor do the cases cited by Ponce in his appellate brief
aid his cause. In both, a court ruled the BIA could take administrative
notice of essentially one fact: the government in the asylum seeker’s
country of origin had changed, making a claim of potential future
persecution less likely. de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1097
(10th Cir. 1994); Kaczmarczyk v. I.N.S., 933 F.2d 588, 593–94 (7th Cir.
1991). Because the question whether an asylum applicant will suffer
3
persecution if returned to his country of origin is one of fact, Elias-
Zacarias, 502 U.S. at 481, and because the BIA is precluded by regulation
from making factual determinations on appeal, 8 C.F.R. § 1003.1(d)(3)(iv),
the BIA did not abuse its discretion when it denied Ponce’s request to take
judicial notice of evidence bearing exclusively on that factual question. 1
2. The administrative record does not compel a finding that Ponce
faced past harm that rose to the level of past persecution. Nagoulko v.
I.N.S., 333 F.3d 1012, 1015 (9th Cir. 2003). To constitute past persecution,
harm must be sufficiently severe. Id. at 1016. Discrimination on account of
a protected ground does not necessarily compel a finding of “persecution.”
Id. Although Ponce faced discrimination from an aunt, two other aunts
supported him, his mother’s treatment of him was “excellent,” and his
biological father treated him with love. While Ponce experienced
discriminatory and extortionate interactions with gang members, the
violence he suffered amounted to minor assaults with no apparent need for
medical treatment and no reports to the authorities. Such events “do not
evince actions so severe as to compel a finding of past persecution.” Hoxha
1
Because Ponce’s claim of a “pattern and practice” of persecution
against homosexuals in Honduras heavily depended on the newly submitted
documentary evidence, the BIA did not err in failing to address that strand
of Ponce’s asylum/withholding request.
4
v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). Ponce also faced insults
and discrimination from those same gang members. Persecution is,
however, an “extreme concept [which] does not include every sort of
treatment our society regards as offensive.” Gu v. Gonzales, 454 F.3d 1014,
1019 (9th Cir. 2006). While such slurs and harassment are offensive, they
do not compel a finding of past persecution even when considered with the
other assaults.
3. Absent the presumption that flows from a finding of past
persecution, the record evidence does not compel a finding that Ponce has a
well-founded fear of future persecution. The lack of evidence of any
particularized threat renders speculative Ponce’s claim of a likelihood of
future persecution if returned to Honduras. Nagoulko, 333 F.3d at 1018.
The evidence of a likelihood of future harm consisted of Ponce’s opinion
based on times when the gang members or other unknown criminals on the
street referenced his perceived sexual orientation. He testified gangs
harmed people in general and concluded “they would discriminate against
me because . . . I am homosexual.” Such a fear of generalized crime and
discrimination does not compel a finding of a reasonable possibility of
future persecution. The only other record evidence was a country-
conditions report submitted by DHS that reflected ongoing discrimination
5
against homosexual individuals and a rape of a homosexual individual by
security forces. This documentary evidence, however, does not compel the
conclusion Ponce, personally, would be subject to conduct amounting to
persecution if returned to Honduras. See Kotasz v. I.N.S., 31 F.3d 847, 851–
52 (9th Cir. 1994).2
4. Ponce did not request CAT protection in his application for asylum
and withholding of removal. Nevertheless, the IJ considered, sua sponte,
whether Ponce was entitled to such relief and concluded he was not. In his
petition for review, Ponce asserts the IJ’s findings are insufficiently
detailed. Ponce did not, however, raise this assertion before the BIA.
Indeed, he did not reference CAT protection in his brief to the BIA.
Although, the IJ’s determination that Ponce is not entitled to CAT relief is
likely preserved for appeal, Parada v. Sessions, 902 F.3d 901, 914 (9th Cir.
2018), the subsidiary question of whether the IJ’s factual findings are
sufficiently detailed is unexhausted and beyond this court’s review. Zhang
v. Aschroft, 388 F.3d 713, 721 (9th Cir. 2004) (per curiam).
2
“A failure to satisfy the lower standard of proof required to
establish eligibility for asylum . . . necessarily results in a failure to
demonstrate eligibility for withholding of deportation.” Pedro-Mateo v.
I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (citation omitted). Thus,
Ponce’s challenge to the BIA’s rejection of his request for withholding of
removal also fails.
6
Ponce’s substantive challenge to the BIA’s determination that he is
not entitled to CAT relief is not meritorious. Ponce argues the country-
conditions report submitted to the IJ by DHS compels the finding that he is
more likely than not to be tortured by the government, or with its
acquiescence, if he were returned to Honduras. That report states, in
relevant part, that, police and military forces, in line with general societal
discrimination, “harassed and abused” homosexuals. It further notes that
“[o]ne international NGO reported that five members of the [military] in
uniform allegedly assaulted and raped a gay man.” Ponce, however,
testified he never had any negative interactions with the police and there is
no record evidence Ponce had any interaction with the military. Thus, the
record evidence does not compel the conclusion Ponce would be tortured if
returned to Honduras.
Petition For Review DENIED in part and DISMISSED in part.
7