NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN RIVERA-RAMIREZ, No. 20-72941
Petitioner, Agency No. A206-636-506
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 23, 2023
San Francisco, California
Before: BERZON, R. NELSON, and BADE, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge BERZON.
Petitioner Edwin Rivera-Ramirez, a native and citizen of El Salvador, seeks
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of an
immigration judge’s (IJ) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review for substantial evidence the factual findings underlying the BIA’s
determination that a petitioner is not eligible for asylum, withholding of removal, or
CAT protection. Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). Under this
standard, the BIA’s findings of fact are conclusive unless the evidence not only
supports a contrary conclusion but compels it. Id.
1. Rivera-Ramirez argues that the BIA erred in holding that he failed to
demonstrate past persecution.1 He claims that his past treatment at the hands of gang
members and a customer of a store at which he worked—especially the gang’s
threats to his life if he did not smuggle marijuana into prison and his attempts to
comply with their demands—amount to persecution and that the BIA’s contrary
conclusion violated this court’s precedent.
Persecution is an “extreme concept,” and “does not include every sort of
treatment our society regards as offensive.” Id. (internal quotation marks and
citation omitted). “This means that some circumstances that cause petitioners
physical discomfort or loss of liberty do not qualify as persecution, despite the fact
1
Rivera-Ramirez does not challenge the BIA’s holding that, absent past persecution,
he failed to demonstrate a well-founded fear of future prosecution, so we do not
consider that issue here. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir.
2004) (“Issues not raised in an appellant’s opening brief are typically deemed
waived.”).
2
that such conditions have caused the petitioners some harm.”2 Id. (internal quotation
marks and citation omitted). Significant considerations that inform the analysis
include “whether the petitioner was subject to significant physical violence,”
“whether he suffered serious injuries that required medical treatment,” and whether
the “harm was an isolated incident, or, conversely, part of an ongoing pattern of
serious maltreatment.” Id. at 1061 (internal quotation marks and citations omitted).
Threats are also considered. While we “have been most likely to find persecution
where threats are repeated, specific and combined with confrontation or other
mistreatment,” id. at 1062 (citation omitted), “most threats do not rise to the level of
persecution,” Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005).
Ultimately, whether harm constitutes persecution is a “heavily
fact-dependent” analysis and “can be framed as follows: looking at the cumulative
2
The dissent categorizes Rivera-Ramirez’s harms as “coerced violations of bodily
integrity.” The events that befell Rivera-Ramirez are troubling, but the physical
harm that he sustained–some external bleeding and accompanying discomfort–does
not compel the conclusion that he was persecuted. There is no basis for the dissent’s
bright-line conclusion that the harm he suffered, notwithstanding the fact that it was
self-inflicted based on unfulfilled threats, constitutes persecution by analogizing to
forced oral sex, abortion, or the renunciation of religious beliefs or worship. Rivera-
Ramirez did not sustain grievous bodily harm, which points away from a finding of
persecution. See Sharma, 9 F.4th at 1061 (“[W]hen we have granted petitions for
review because the record compelled a finding of past persecution, the petitioner
often experienced serious physical violence, among other indicators of
persecution.”); see also Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995) (when
petitioner “did not require medical treatment,” the attack on him was not “so
overwhelming so as to necessarily constitute persecution”).
3
effect of all the incidents Petitioner has suffered, does the treatment she received rise
to the level of persecution?” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir. 2004)
(internal quotation marks and alterations omitted).
Rivera-Ramirez’s alleged harms, while disturbing, do not rise to the level of
past persecution. He was not subject to significant physical violence, he did not
require medical treatment after attempting to comply with the gang’s demands, the
threats against his life were never acted on, and he was ultimately left alone after he
refused to continue performing tasks for the gang.3 See Sharma, 9 F.4th at 1061;
Villegas Sanchez, 990 F.3d at 1179.
All cases Rivera-Ramirez cites to support that he was persecuted are easily
distinguishable. See, e.g., Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1179 (9th Cir.
2020) (petitioner was raped repeatedly and badly beaten); Korablina v. INS, 158
3
The dissent would find that Rivera-Ramirez’s harms cumulatively rose to the level
of persecution because he suffered “physical harm plus something more, such as
credible death threats.” But this conclusion is undermined by the totality of the
record evidence: Even though Rivera-Ramirez was threatened several times, the
bulk of the threats received by Rivera-Ramirez were via phone without any
confrontation. Villegas Sanchez v. Garland, 990 F.3d 1173, 1179 (9th Cir. 2021)
(citing Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019): “threats by
phone and in person, without acts of violence, did not compel finding past
persecution”). This was true even when Rivera-Ramirez ultimately declined to assist
the gang with smuggling drugs and another non-physically invasive task. And when
Rivera-Ramirez cut all ties with the gang, he suffered no harm or additional threats
from them. In fact, he relocated and lived in another part of El Salvador for over
two years, which makes the events at issue more like random threats than
persecution. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
4
F.3d 1038, 1042 (9th Cir. 1998) (petitioner was physically beaten and tied up in a
chair with a noose tightened around her neck); Ahmed v. Keisler, 504 F.3d 1183,
1188 (9th Cir. 2007) (Bengali army killed petitioner’s uncle in front of him and beat
him and his brother); Popova v. INS, 273 F.3d 1251, 1254–55 (9th Cir. 2001)
(petitioner was interrogated and assaulted by police, her grandfather was beaten, her
father was sent to hard labor, her home was razed, and her apartment was set on fire).
The harm here does not compel the conclusion that Rivera-Ramirez experienced past
persecution.4 Rivera-Ramirez’s asylum claim was properly denied.5
4
The dissent argues that the agency erred as a matter of law by failing to consider
psychological harm because our precedents “do not require severe injuries to meet
the serious-harm prong of the past persecution analysis.” But the dissent’s assertion
that the agency erred as a matter of law improperly redefines our proper inquiry.
Our review here is for substantial evidence. Under substantial evidence review, we
cannot reinterpret the record, reweigh the evidence, or substitute our judgment for
that of the agency. See Singh, 134 F.3d at 969 n.14 (“[W]e may not reweigh the
evidence to determine for ourselves whether Petitioner faced persecution,” and
“merely determine whether the evidence compels such a conclusion.”). The question
is not whether the agency’s decision was the best analysis or even prudent; it is
whether the conclusion it drew is supported by substantial evidence. See Cruz-
Navarro v. INS, 232 F.3d 1024, 1028 (9th Cir. 2000) (court cannot “substitute an
analysis of which side in the factual dispute we find more persuasive”) (quoting
Marcu v. INS, 147 F.3d 1078, 1082 (9th Cir. 1998)).
5
The dissent lastly points to Rivera-Ramirez’s age as a factor pointing towards a
finding of persecution. While age may be one relevant factor for the agency to
consider, it is not dispositive. And it is certainly not dispositive when here, all other
factors combined do not cumulatively point to a finding of persecution. See, e.g.,
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (noting that age
“can be a critical factor in the adjudication of asylum claims and may bear heavily
on the question of whether an applicant was persecuted or whether she holds a well-
5
2. Because Rivera-Ramirez cannot compel the determination that he is
ineligible for asylum, he also cannot establish eligibility for withholding of removal,
which carries a higher standard. Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir.
2017).
3. Substantial evidence supports the BIA’s conclusion that
Rivera-Ramirez is not eligible for CAT protection. Because Rivera-Ramirez’s harm
in El Salvador did not rise to the level of persecution, “it necessarily falls short of
the definition of torture.”6 Sharma, 9 F.4th at 1067; see also Davila v. Barr, 968
F.3d 1136, 1144 (9th Cir. 2020) (“Torture is more severe than persecution.” (internal
quotation marks and citation omitted)). Moreover, the record does not establish that
Rivera-Ramirez was tortured with the acquiescence of public officials. See Davila,
968 F.3d at 1144.
PETITION DENIED.
founded fear of future persecution.”) (quoting Liu v. Ashcroft, 380 F.3d 307, 314
(7th Cir. 2004) (emphasis added)).
6
As with past persecution, Rivera-Ramirez does not argue that, absent a finding of
past torture, the record compels a conclusion that it is more likely than not that he
will be tortured in El Salvador.
6
FILED
MAY 30 2023
Rivera-Ramirez v. Garland, 20-7294
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I concur in the denial of Edwin Rivera-Ramirez’s petition with respect to his
Convention Against Torture claim. I write separately because I would grant the
petition as to his asylum and withholding of removal claims. Assuming for the
purposes of this case that the applicable standard of review is whether substantial
evidence supports the agency’s determination, I would hold that the agency erred
in determining that the harms Rivera-Ramirez suffered did not amount to
persecution. I therefore dissent.
1. The agency committed legal error by concluding that Rivera-
Ramirez’s harms did not constitute persecution because “the respondent has
actually never [been] physically harmed by anyone in El Salvador.” Under our
case law, coerced violations of bodily integrity or other rights can constitute
persecution. “Physical means are but one method of coercion used to force an
individual to undergo an involuntary” act. Ding v. Ashcroft, 387 F.3d 1131, 1139
(9th Cir. 2004). Thus, a finding of persecution may be based on a showing that the
asylum applicant was coerced into performing or submitting to harmful acts. See,
e.g., id. (recognizing persecution may be based on abortion coerced through threats
of job loss or wage reduction, even if no physical restraints were used); Guo v.
Sessions, 897 F.3d 1208, 1215–16 (9th Cir. 2018) (recognizing persecution may be
1
based on “forcing a petitioner to renounce his beliefs” or “forcing a petitioner to
abandon his religious worship”); see also Hernandez-Montiel v. I.N.S., 225 F.3d
1084, 1088, 1097–98 (9th Cir. 2000) (finding persecution where petitioner was
forced to perform oral sex to avoid threatened imprisonment), overruled on other
grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), vacated, 547 U.S.
183 (2006). Here, through verbal death threats and a pointed gun, as well as a
threat of sexual assault, gang members caused Rivera-Ramirez to suffer repeated,
painful violations of his bodily integrity. The injuries he suffered may amount to
persecution even though they were not inflicted directly by his alleged persecutors.
2. As a result of the gang members’ threats and the coerced physical
violations, Rivera-Ramirez suffered intense psychological trauma. The agency
erred as a matter of law by failing to consider psychological harm when
determining whether Rivera-Ramirez had established past persecution. Our
precedents “do not require severe injuries to meet the serious-harm prong of the
past-persecution analysis.” Antonio v. Garland, 58 F.4th 1067, 1074 (9th Cir.
2023) (citation omitted). Instead, “[p]ersecution may be emotional or
psychological, as well as physical.” Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th
Cir. 2004); see also Kovac v. I.N.S., 407 F.2d 102, 105–06 (9th Cir. 1969).
3. Applying the proper legal standards, and considering the harms
Rivera-Ramirez suffered cumulatively, see Flores Molina, 37 F.4th at 636, I would
2
conclude that under substantial evidence review, the record here compels a finding
of past persecution.
A conclusion that the petitioner suffered persecution may be compelled
when, as here, the petitioner has suffered “physical harm plus something more,
such as credible death threats.” Aden v. Wilkinson, 989 F.3d 1073, 1083 (9th Cir.
2021) (emphasis in original). Not only did Rivera-Ramirez suffer repeated coerced
bodily intrusions which bloodied him and caused pain; he also suffered multiple
threats to his life and to that of his infant nephew, a threat of sexual assault, and
emotional trauma.
The death threats alone were significant. “[T]he frequency, escalation, and
seriousness of threats, as well as the fact that persecutors threatened a petitioner in
close confrontations . . . , can be sufficient to compel the conclusion that . . . threats
rise to the level of persecution.” Antonio, 58 F.4th at 1073. Here, gang members
explicitly threatened Rivera-Ramirez’s life on at least four occasions, including
two in-person confrontations, one of which was at gun point. They also threatened
his infant nephew’s life three times. A gang member impliedly threatened Rivera-
Ramirez’s life a fifth time when he told Rivera-Ramirez’s romantic partner that the
partner had to cooperate with them if the partner wanted to continue having sexual
relations with Rivera-Ramirez.
3
The conclusion that Rivera-Ramirez was persecuted is further compelled
when his age is taken into account. He was still a teenager at the time the agency
found the events to have occurred. “Age can be a critical factor in the adjudication
of asylum claims and may bear heavily on the question of whether an applicant
was persecuted.” Singh v. Garland, 57 F.4th 643, 654 (9th Cir. 2022) (citation
omitted). The “harm a child fears or has suffered . . . may be relatively less than
that of an adult and still qualify as persecution.” Zhang v. Gonzales, 408 F.3d
1239, 1247 (9th Cir. 2005) (citation omitted); cf. 8 U.S.C. § 1101(b)(1) (“The term
‘child’ means an unmarried person under twenty-one years of age”); 8 U.S.C. §
1101(c)(1) (same).
****
In sum, because the agency erred in concluding that Rivera-Ramirez’s harms
did not rise to the level of persecution, I would remand his asylum and withholding
claims for the agency to determine whether he has established the remaining
elements of past persecution.
4
Edwin Rivera-Ramirez v. Merrick Garland
Combined Opinion