NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 5 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERARDO MIGUEL ANDRES- No. 24-1640 ZACARIAS; WALTER JOSE ANDRES- Agency Nos.

CRUZ, A091-720-818

A209-864-797

Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 7, 2025** Pasadena, California

Before: CALLAHAN, DESAI, and DE ALBA, Circuit Judges.

Gerardo Miguel Andres-Zacarias and his son, Walter Jose Andres-Cruz

(collectively, “petitioners”), both natives and citizens of Guatemala, petition for

review of the Board of Immigration Appeals’ (“BIA”) decision dismissing their

* 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). appeal of an Immigration Judge’s (“IJ”) denial of their applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019). We review the denial of asylum, withholding of removal, and CAT relief for

substantial evidence, id. at 1028, and we review due process claims de novo. Olea-

Serefina v. Garland, 34 F.4th 856, 866 (9th Cir. 2022).

1. Petitioners are ineligible for asylum because they failed to establish past

persecution or a well-founded fear of future persecution.1 Petitioners testified that

from 2008 to 2015 they received several threats and were confronted by gang

members. But there is no evidence that the gang members had “the will” to carry out

these threats, see Aden v. Wilkinson, 989 F.3d 1073, 1083 (9th Cir. 2021), as

petitioners did not experience any physical harm in Guatemala despite refusing to

comply with the gang’s demands, see Nagoulko v. INS, 333 F.3d 1012, 1016 (9th

1 We have reviewed de novo and for substantial evidence “whether particular acts constitute persecution for purposes of asylum.” Singh v. Garland, 97 F.4th 597, 603 (9th Cir. 2024); Lapadat v. Bondi, 128 F.4th 1047, 1055 (9th Cir. 2025) (noting that “our standard of review for past-persecution determinations appears to be in flux”). We need not resolve this tension because petitioners’ asylum claim fails under either standard.

2 24-1640 Cir. 2003). Nor does the single physical attack on Andres-Zacarias’s elder son rise

to the type of serious mistreatment that constitutes persecution, even when

considered cumulatively with the gang’s threats. Cf. Baballah v. Ashcroft, 367 F.3d

1067, 1075 (9th Cir. 2004). Accordingly, even on de novo review, petitioners have

failed to establish past persecution.

Petitioners also failed to show a well-founded fear of future persecution. To

“establish a well-founded fear of future persecution” petitioners must show “a

subjective fear of future persecution,” and “an objectively reasonable possibility”

that they will be persecuted upon their return. Duran-Rodriguez, 918 F.3d at 1029

(quotation omitted). Petitioners’ country conditions evidence speaks to gang

violence generally but does not indicate a reasonable possibility that Andres-

Zacarias will be harmed because of his religious work or Kanjobal race if he is

returned to Guatemala. Andres-Zacarias worked with the church for ten years

without incident, which further undermines his fears that he will be harmed upon

return.

Moreover, a petitioner’s “claim of persecution upon return is weakened . . .

when similarly-situated family members continue to live in the country without

incident.” Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (quoting Hakeem

v. INS, 273 F.3d 812, 816 (9th Cir. 2001)). Andres-Zacarias’s wife and several of

3 24-1640 his children, including three sons,2 continue to live in Guatemala and are unharmed.

Because Andres-Zacarias seeks asylum based on his Kanjobal race and Walter

claims asylum based on the proposed social groups “his father’s son” and “young

Kanjobal males living in [a] Kanjobal area,” Andres-Zacarias’s family in Guatemala

are “similarly situated” to petitioners. Thus, petitioners’ claims of persecution are

weakened by their “similarly-situated” family members who remain in Guatemala

without incident.

Finally, the BIA did not err in concluding that Walter could relocate within

Guatemala. See Hussain v. Rosen, 985 F.3d 634, 648–49 (9th Cir. 2021) (holding

that generalized violence throughout the country and the hardship of relocating to

“an unfamiliar town . . . without [petitioner’s] family” did not compel the conclusion

that relocation was unreasonable). Failure to show an inability to relocate disposes

of Walter’s individual claims of a well-founded fear of future persecution. Duran-

Rodriguez, 918 F.3d at 1029 n.2. 3

2. Because petitioners failed to show the well-founded fear of persecution

required for asylum, they necessarily fail to meet the more strict “clear probability”

2 Petitioners assert in their brief that only three children remain in Guatemala. But the testimony before the IJ established that five children remained in Guatemala, three of whom are male. 3 To the extent that petitioners argue that Walter is entitled to asylum because of his political opinion, this claim is unexhausted. See 8 U.S.C. § 1252(d)(1); Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).

4 24-1640 standard for withholding of removal. Zehatye v. Gonzalez, 453 F.3d 1182, 1190 (9th

Cir. 2006).

3. Substantial evidence supports the denial of CAT relief. To qualify for

CAT relief, petitioners must show it is “more likely than not” that they will be

tortured upon removal. 8 C.F.R § 1208.16(c)(2). Because the harm petitioners

suffered does not rise to the level of persecution, “it necessarily falls short of the

definition of torture.” Sharma, 9 F.4th at 1067.

4. Nor did the IJ violate Andres-Zacarias’s due process rights. To succeed

on a due process claim, petitioners must show “that the violation caused [them]

prejudice.” Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018).

Petitioners argue that the IJ’s refusal to allow Zacarias to testify about the size of the

Kanjobal tribe violated their due process rights, but they do not explain how the

exclusion of this testimony prejudiced them. Because the proscribed testimony is

irrelevant to the BIA’s dispositive finding that petitioners did not establish a well-

founded fear of persecution, they cannot show prejudice, which is fatal to their due

process claim. See Pagayon v. Holder, 675 F.3d 1182, 1191–92 (9th Cir. 2011) (per

curiam).

Petitioners also argue that the IJ was not a neutral fact-finder. When an IJ fails

to act as a neutral fact-finder, a petitioner’s due process rights may be violated. See

Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003). But “a mere showing

5 24-1640 that the IJ was unfriendly, confrontational, or acted in an adversarial manner is not

enough” to establish a due process violation. Rizo v. Lynch, 810 F.3d 688, 693 (9th

Cir. 2016). The IJ permitted a thorough direct and cross-examination of both Andres-

Zacarias and Walter; the record does not demonstrate that the IJ transformed into a

“partisan adjudicator seeking to intimidate [petitioner] and his counsel.” Colmenar

v. INS, 210 F.3d 967, 971 (9th Cir. 2000).

The petition is DENIED.

6 24-1640