NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JHAMPIERRE STEVEN GARCIA SOTO, AKA Sebastian Patino Gonzales,

Petitioner,

v. MERRICK B. GARLAND, Attorney General, Respondent. No. 17

- 72395 Agency No. A209

- 867

- 807

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 5, 2023 * * San Francisco, California Before: McKEOWN, TALLMAN and LEE, Circuit Judges. Jhampierre Garcia Soto, a native and citizen of Peru, seeks review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal from an Immigration Judge’s (IJ) denial of his applications for asylum, withholding of

* 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). 

# FILED

OCT 13 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

removal, and protection under the Co nvention Against Torture (CAT). We have jurisdiction under 8 U.S.C § 1252 (a)(1) , and we deny the petition. Garcia Soto attempted to enter the United States by furnishing a fraudulent passport card and misrepresenting himself as a U.S. citizen

. T he Depar tment of Homeland Security (DHS) initiated removal proceedings, charging him with inadmissibility. Garcia Soto conceded the charge but then filed applications for asylum, withholding of removal, and protection under CAT. T he IJ denied all three applicati ons. Garcia Soto appealed the IJ’s decision to the BIA, which dismissed his appeal.
1. Asylum: The BIA did not err when it upheld the IJ’s denial of asylum

. To establish asylum eligibility, an applicant must show that he is unable or unwilling to return to his country of nationality “because of persecution or a well

- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Evidence of past
pers ecution raises a rebuttable presumption of a well

- founded fear of future persecution. Bringas

- Rodriguez v. Sessions , 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc)

. And to demonstrate past persecution, the petitioner must establish that “(1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to3

control.” Id. (quotation marks and citation omitted). Whether a particular social group is cognizable is ultimately a legal question, but social distinction is a factual
issue reviewed for substantial evidence. Conde Quevedo v. Barr , 947 F.3d 1238, 1242 (9th Cir. 2020).
The B IA did not err by finding that Garcia Soto failed to establish membership in a particular social group. Garcia Soto relies on Henriquez

- Rivas v. Holder , 707 F.3d 1081, 1092 (9 th Cir. 2013) (en banc), in which we held that witnesses who testified in court against gang members in El Salvador may constitute a cognizable particular social group. Because he filed a police report following his attack at the
hands of Los Malditos de Bayovar (LMB) , Ga rcia Soto contends that he is a member of an analogous group of witnesses and informants against gang members in Peru. Although Henriquez

- Rivas instructs that “witnesses who testify against gang members” may be a cognizable social group, the agency reason ably determined that Garcia Soto’s actions did not, in fact, make him a member of this group. On the contrary, Garcia Soto merely filed a police report which failed to identify any of his
assailants. See Conde Quevedo , 947 F.3d at 1243. Garcia Soto fail s to adduce any evidence that Peruvian society views individuals who report gang activity to the police as a socially distinct group or affords them special protection under Peruvian
law

. See id. at 1243

– 44

.4

Finally, substantial evidence supports the agen cy’s conclusion that Garcia Soto’s past harm

— and any potential future harm

— would not be owed to his being a witness or informant, but rather his refusal to peddle contraband on behalf of LM B

. Garcia Soto’s only proffered evidence that he would be persecut ed on account of his police report is a speculative conclusion that the police informed LMB that he had
filed the report against them . Such speculation is insufficient to compel a contrary
conclusion

. 2. Withholding of removal. The agency did not err in denying Garcia Soto’s application for withholding of removal. To warrant withholding of removal, an applicant must establish a “clear probability” that he will experience persecution
upon his return. Singh v. Garland , 57 F.4th 6 43, 658 (9th Cir. 2022)

. “Withholding’s ‘clear probability’ standard is more stringent than asylum’s well

founded

- fear standard

. . . . ” Id. (citation omitted). Because Garcia Soto cannot
establish eligibility for asylum, he likewise cannot establish el igibility for withholding. Id

. 1

1 In a footnote, the BIA appeared to apply the “ one central r eason ” standard in assessing past and future harm. For withholding of removal, however, the protected ground need only be “ a reason ” for harm. Barajas

- Romero v. Lynch , 846 F.3d 351, 360 (9th Cir. 2017). Any error is harmless because the BIA determined t hat Garcia Soto failed to establish any nexus between his harm and his proposed particular social group. S ee Singh v. Barr , 935 F.3d 822, 827 (9th Cir. 2019) (holding that a finding of no nexus between harm and a protected ground fails to satisfy the asyl um standard and the lower withholding standard).5

3. CAT. “To establish entitlement to protection under CAT, an applicant must show ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’” Plancarte Sauceda v. Garland , 23 F.4th 824, 834 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). “The torture must be ‘inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official acting in an official capacity or other person acting in an official capacity.’”
Id. (quoting 8 C.F.R. § 1208.18(a)(1)). Substantial evidence supports the agency’s denial of Garcia Soto’s CAT claim on the grounds that he failed to establish that it is likely that he would be tortured in
Peru and that the Peru vian government would acquiesce in such conduct. N one of
th e evidence offered by Garcia Soto undermines the agency’s conclusion. Although the country

- condition report documents generalized corruption among the police, it
does not establish collaboration between the police and the LMB. T he agency also cited evidence that the Peruvian government has undertaken efforts to combat gangs.
PETITION DENIED.