Ana Guzman-Ajenel v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 5, 2021
• Docket: 18-73157
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA GUZMAN-AJENEL, AKA Ana No. 18-73157 Elvira Guzman-Ajanel, Agency No. A088-762-777 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 1, 2021** Pasadena, California

Before: GOULD, OWENS, and VANDYKE, Circuit Judges.

Ana Guzman-Ajenel (Guzman) petitions for review of the Board of

Immigration Appeals’ (BIA) order dismissing her appeal of an Immigration Judge’s

(IJ) decision denying her application for withholding of removal and request for

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

8 U.S.C. § 1252. We deny the petition for review.

“Whether a group constitutes a ‘particular social group’ ... is a question of

law we review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).

The BIA’s factual findings are reviewed for substantial evidence. Rayamajhi v.

Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Under this deferential standard,

factual findings are treated as “conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh

v. Lynch, 802 F.3d 972, 974 (9th Cir. 2015). Accordingly, in order to reverse the

BIA’s finding under substantial evidence review, “we must find that the evidence

not only supports that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992).

1. Guzman’s withholding of removal claim fails because substantial evidence

supports the BIA’s conclusion that Guzman was unable to show she would be

persecuted because of her membership in a particular social group (PSG).

Specifically, Guzman contends that she will be persecuted as a member of two

proposed PSGs: (1) “Guatemalan family members of a United States resident”; and

(2) “Ms. Guzman’s father’s family members.”

The BIA concluded that Guzman failed to show her first proffered PSG was

socially distinct because the record did not “demonstrat[e] that Guatemalan society

2 perceives her proposed group as a [PSG].” Where, as here, “the record is devoid of

any society specific evidence, ... which would establish that [Guzman’s first

proposed PSG] [is] perceived or recognized as a group by society in Guatemala,”

the record does not compel the conclusion that the BIA erred in determining that

“Guatemalan family members of a United States resident” is not a cognizable PSG.

Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020).

Regarding Guzman’s second proposed PSG—“Ms. Guzman’s father’s family

members”—the BIA agreed with the IJ that Guzman failed to demonstrate “that her

membership in the group was or will be ‘a reason’ for the harm.” See also

Lkhagvasuren v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (“The petitioner has the

burden to prove that a nexus exists between the persecution and a protected

ground.”). The fact that Guzman and her daughters have been harmed is not enough

to show a nexus—that is, that they were harmed because they were members of Ms.

Guzman’s father’s family—and the record lacks evidence that the threats and harm

against them were motivated by their kinship. See id. at 803 (“Where persecution

did not occur on account of a protected ground, … claims for … withholding of

removal necessarily fail.”). Instead, the record supports the conclusion that Guzman

“and her daughter were targeted for financial and illicit purposes, unrelated to

3 [Guzman’s] family ties.”1

2. Substantial evidence supports the BIA’s conclusion that Guzman failed to

meet her burden of proof under CAT. To qualify for CAT protection, Guzman bears

the burden of proving “that ‘it is more likely than not that … she would be tortured

if removed to the proposed country of removal.’” Azanor v. Ashcroft, 364 F.3d 1013,

1018 (9th Cir. 2004) (alteration in original) (quoting 8 C.F.R. § 208.16(c)(2)). While

Guzman suffered harm in the past, she also lived unharmed in Guatemala for 18

months after her last incident and has not provided evidence that it is more likely

than not that she will be tortured if she returns to Guatemala. The general

atmosphere of violence in Guatemala and her general fear of gangs and crime is

insufficient to meet the standard for CAT protection. See Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010) (“Petitioners’ generalized evidence of violence

and crime in Mexico is not particular to Petitioners and is insufficient to meet this

standard [under CAT].”). Therefore, substantial evidence supports the BIA’s

conclusion that Guzman is not eligible for CAT relief.

The petition for review is DENIED.2

1 Given the lack of nexus, we need not address whether Guzman’s proposed PSG made up of Ms. Guzman’s father’s family members is cognizable in this case. But see Matter of L-E-A-, 27 I. & N. Dec. 581, 581, 584 (2019). 2 Because we deny the petition for review, we also deny as moot Guzman’s motion for stay of removal (ECF No. 1).