NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM ERNESTO FLORES-RIVAS, 

AKA William Ernesto Chacon-Rivas, AKA 

Jose Alfredo Flores, AKA Luis Alberto 

Flores, AKA Jose Alfredo Flores-Chacon, 

AKA William Rivas, AKA William Ernesto 

Rivas, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 16-71018 

Agency No. A205-710-744 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 13, 2022**

Pasadena, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and AMON,*** District 

Judge.

* 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 Carol Bagley Amon, United States District Judge for 

the Eastern District of New York, sitting by designation.

FILED

MAY 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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William Ernesto Flores-Rivas, a native and citizen of El Salvador, petitions 

for review of an order of the Board of Immigration Appeals (BIA) upholding the 

immigration judge’s denial of his applications for withholding of removal and 

protection under the Convention Against Torture (CAT). We deny the petition. 

1. Substantial evidence supports the agency’s determination that FloresRivas is ineligible for withholding of removal. To qualify for withholding, a 

petitioner must show a “clear probability” of persecution in the country of removal 

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

group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b); Navas 

v. INS, 217 F.3d 646, 655 (9th Cir. 2000). While sexual orientation can be the 

basis for establishing a particular social group, see Hernandez-Montiel v. INS, 225 

F.3d 1084, 1093–94 (9th Cir. 2000), Flores-Rivas failed to demonstrate a clear 

probability of persecution on this basis. He provided no evidence to support a 

finding of past persecution on the basis of sexual orientation, and the BIA 

permissibly determined based on the “totality of the record”—including

petitioner’s testimony, the country conditions evidence, and his brief return to El 

Salvador—that Flores-Rivas did not establish a sufficient likelihood of future 

persecution. See Loho v. Mukasey, 531 F.3d 1016, 1017–18 (9th Cir. 2008).

2. Substantial evidence also supports the agency’s determination that 

Flores-Rivas is not entitled to protection under CAT. To be entitled to CAT 
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protection, Flores-Rivas must establish that, if returned to his home country, he is 

“more likely than not” to face torture by or with the government’s acquiescence. 8 

C.F.R. § 208.16(c)(2). While the country conditions evidence submitted by FloresRivas indicates that those who are gay or bisexual face discrimination in El 

Salvador, discrimination does not rise to the level of torture. Nuru v. Gonzales, 

404 F.3d 1207, 1224 (9th Cir. 2005); Fisher v. INS, 79 F.3d 955, 962 (9th Cir. 

1996) (en banc). Moreover, the country conditions evidence indicates that

incidents of discrimination were investigated by state authorities. Flores-Rivas 

failed to demonstrate that he experienced past harm rising to the level of torture or 

that he faces a particularized risk of torture (as opposed to discrimination) in El 

Salvador. Nothing suggests that in denying relief the BIA failed to consider all 

relevant evidence, and the record evidence does not compel a conclusion contrary 

to that reached by the agency. See Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 

2011). 

PETITION FOR REVIEW DENIED.