NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE HERNANDEZ-VASQUEZ; No. 19-72815

CLAUDIA HERNANDEZ-MURCIA;

FATIMA HERNANDEZ-MURCIA, Agency Nos. A208-753-236

A208-753-237

Petitioners, A208-753-238

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 8, 2022** Pasadena, California

Before: M. SMITH, BADE, and VANDYKE, Circuit Judges.

Petitioners Jose Hernandez-Vasquez and his two daughters petition for review

of a decision of the Board of Immigration Appeals (BIA) affirming the order of an

Immigration Judge denying their applications for asylum, withholding of removal,

* 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). and protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

“Where, as here, the BIA agrees with the [Immigration Judge’s] decision and

also adds its own reasoning, we review the decision of the BIA and those parts of

the [Immigration Judge’s] decision upon which it relies.” Duran-Rodriguez v. Barr,

918 F.3d 1025, 1027–28 (9th Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028

(9th Cir. 2011)). “We review questions of law, such as whether a proposed particular

social group is cognizable, de novo.” Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir.

2020). “We review the denial of asylum, withholding of removal[,] and CAT claims

for substantial evidence.” Duran-Rodriguez, 918 F.3d at 1028. “Under this

standard, we must uphold the agency determination unless the evidence compels a

contrary conclusion.” Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 481 n.1

(1992)).

Petitioners bear the burden of proving eligibility for asylum. See 8 U.S.C.

§ 1158(b)(1)(B)(i). To qualify for asylum, Petitioners must show that they are

“refugee[s]” within the meaning of 8 U.S.C. § 1101(a)(42)(A) by demonstrating that

they have suffered past persecution or have a well-founded fear of future persecution

on account of “race, religion, nationality, membership in a particular social group,

or political opinion.” Here, the Immigration Judge found that Petitioners “ha[d] not

demonstrated any past persecution” or “a well-founded fear of [future] persecution.”

2 Petitioners—who are represented by counsel—do not challenge these findings on

appeal. This failure is fatal to their petition for review of the Immigration Judge’s

denial of their applications for asylum and withholding of removal. See Lopez-

Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013); cf. Matus-Leva v.

United States, 287 F.3d 758, 760 (9th Cir. 2002).

Petitioners also arguably waived their CAT claims before our court.

“Compliance with the rules is not a mere formality,” and “we’ve repeatedly held that

failure to comply with [Federal Rule of Appellate Procedure] 28, by itself, is

sufficient ground to justify dismissal of an appeal.” Christian Legal Soc. Chapter

of Univ. of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (citation omitted). In their

“Statement of the Issues,” Petitioners challenge the Immigration Judge’s denial of

their CAT claims with respect to only “Hernandez-Vasquez’s daughters.” But in

their “Summary of the Argument,” Petitioners seem to challenge the denial only as

to Hernandez-Vasquez. Then, in their “Argument,” Petitioners perfunctorily

challenge the denial as to both. Because of Petitioners’ noncompliance with Rule

28, we could conclude that they have waived any challenge to the Immigration

Judge’s denial of their CAT claims.

But even assuming they did not waive their CAT claims, substantial evidence

supports the Immigration Judge’s denial of those claims. Hernandez-Vasquez was

never physically harmed, let alone tortured. And although gang members harassed

3 his daughters, the agency was not compelled to conclude this rose to the level of

“torture.” See 8 C.F.R. § 208.18(a)(2). Moreover, the harassment was not “inflicted

by or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” Garcia-Milian v. Holder, 755 F.3d 1026,

1033 (9th Cir. 2014) (quoting Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th

Cir.2003)); see 8 C.F.R. § 208.18(a)(1).

PETITION DENIED.

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