Alba Hernandez-Amaya v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2020
• Docket: 17-71982
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 21 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBA LORENA HERNANDEZ- No. 17-71982 AMAYA, Agency No. A099-664-295 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted January 24, 2020** Pasadena, California

Before: CLIFTON and LEE, Circuit Judges, and BLOCK,*** 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Alba Lorena Hernandez-Amaya, a native and citizen of El Salvador,

petitions for review of the decision of the Board of Immigration Appeals

dismissing her appeal from a decision by the Immigration Judge denying her

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Hernandez-Amaya argues that she has been

and will be persecuted and tortured by the father of her child, Juan Carlos.

Substantial evidence supports the BIA’s conclusion that Hernandez-Amaya failed

to demonstrate either that the government was unwilling or unable to control

Carlos or that the government would be willfully blind to any torture committed

against her. Accordingly, we deny the petition for review.

“To qualify for asylum, an applicant must show that she is a ‘refugee,’

defined as one who ‘is unable or unwilling to return to [her home country] . . .

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.’” Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting 8

U.S.C. § 1101(a)(42)(A)). The agents of persecution must be the government, a

quasi-official group, or persons or groups that the government is unwilling or

unable to control. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.

2000). “A failure to satisfy the . . . standard of proof required to establish eligibility

2 for asylum . . . necessarily results in a failure to demonstrate eligibility for

withholding of deportation.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.

2000).

The BIA upheld the immigration judge’s decision to deny Hernandez-

Amaya’s claims for asylum and withholding of removal on the grounds that she

failed to establish “that the harm was or would be inflicted by the government or

by individuals whom the government is unwilling or unable to control.”

Hernandez-Amaya argues that this conclusion was in error. However, there is

substantial evidence in the record to support this determination.

First, Hernandez-Amaya never reported Carlos’s violence to the police, nor

did she establish a compelling reason for her failure to do so. In cases of

non-governmental persecution, “we consider whether an applicant reported the

incidents to police, because in such cases a report of this nature may show

governmental inability to control the actors.” Baballah v. Ashcroft, 367 F.3d 1067,

1078 (9th Cir. 2004). But, “an applicant . . . need not have reported that

persecution to the authorities if [s]he can convincingly establish that doing so

would have been futile or have subjected h[er] to further abuse.” Ornelas-Chavez

v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Hernandez-Amaya never

reported Carlos’s violence to the police, nor did she convincingly establish that 3 reporting him would have been futile or result in further abuse. Moreover, while

Hernandez-Amaya did not report Carlos, his family did. When this occurred, the

police arrested and held Carlos for multiple days, releasing him only after

Hernandez-Amaya refused to give a declaration. This incident suggests that

reporting Carlos would not have been futile, and that the Salvadoran government

was willing and able to control him.

Second, the Salvadoran government has previously sentenced Carlos to

“about 15 years” on murder charges. While petitioner states that Carlos has since

been released, the government held him in prison for a substantial period of time.

This is demonstrative of the government’s willingness and ability to control

Carlos. Thus, substantial evidence supports the BIA's conclusion that

Hernandez-Amaya did not meet her burden to establish that persecution was or

would be inflicted by individuals whom the government is unwilling or unable to

control. Therefore, the BIA did not err in denying her applications for asylum and

withholding of removal.

Additionally, the BIA did not err in denying Hernandez-Amaya’s

application for protection under CAT. “A petitioner seeking CAT relief must show

that it is more likely than not that [s]he will be tortured upon removal, and that the

torture will be inflicted at the instigation of, or with the consent or acquiescence of, 4 the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).

Hernandez-Amaya has not demonstrated that she would be tortured either by a

government actor or with the tacit consent of the Salvadoran government. Instead,

the fact that Carlos has been arrested twice, and imprisoned once on a fifteen-year

sentence, indicates that the government is unlikely to turn a blind eye to any

potential torture of Hernandez-Amaya. Thus, substantial evidence also supports the

BIA’s determination that Hernandez-Amaya is not eligible for protection under

CAT.

PETITION DENIED.