Atilua-Diaz v. Garland
23-2481
9th Cir.Nov 15, 2024Background
- Carlos Atilua-Diaz, his partner, and minor child, all Colombian citizens, sought review of the Board of Immigration Appeals (BIA)'s dismissal of their appeals for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- The IJ initially denied their claims; the BIA affirmed on the grounds that Atilua-Diaz failed to prove past persecution or a well-founded fear of future persecution.
- Alleged persecution stemmed from threats by FARC dissidents: one in-person threat and three phone calls.
- The BIA also found that the CAT claim was waived and rejected due process arguments due to lack of specificity and failure to demonstrate prejudice.
- The Ninth Circuit reviewed only the BIA's decision, confirming substantial evidence supported the agency's conclusions and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution | Threats from FARC dissidents constituted persecution | Threats alone do not rise to persecution | No past persecution established |
| Well-founded fear of future persecution | Faces unique, personal risk if returned | Lacks evidence of specific, individualized risk | No well-founded fear shown |
| Withholding of removal | Should receive higher protection | Failed to meet even the lower asylum standard | Withholding denied, did not meet heightened burden |
| Due process in removal proceedings | IJ played improper, biased role | No error or demonstrated prejudice | Due process claim unexhausted/waived and fails on the merits |
Key Cases Cited
- Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) (reviewing BIA decisions except when expressly adopting IJ decision)
- Guo v. Sessions, 897 F.3d 1208 (9th Cir. 2018) (upholding denials of asylum/CAT if supported by substantial evidence)
- Rodriguez Tornes v. Garland, 993 F.3d 743 (9th Cir. 2021) (standard for establishing past persecution or well-founded fear)
- Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005) (most threats do not amount to persecution)
- Garcia v. Wilkinson, 988 F.3d 1136 (9th Cir. 2021) (showing clear probability standard for withholding of removal)
- Grigoryan v. Barr, 959 F.3d 1233 (9th Cir. 2020) (must show error and prejudice in due process deportation cases)