Anacleta Jeronimo-Sales v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2021
• Docket: 18-73329
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANACLETA JERONIMO-SALES, ET AL, No. 18-73329

Petitioners, Agency Nos. A208-117-973, A208- 117-974, A208-117-975, A208- v. 117-976

ROBERT M. WILKINSON, Acting Attorney General, MEMORANDUM*

Respondent.

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

Submitted February 8, 2021** Pasadena, California

Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.

Anacleta Jeronimo-Sales and her three minor children petition for review of

an order of the Board of Immigration Appeals (BIA) affirming the immigration

judge’s (IJ) denial of asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). Jeronimo-Sales and her two older children are

* 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). natives and citizens of Guatemala; her third child is a native and citizen of Mexico.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

1. We review agency denials of asylum, withholding of removal, and CAT

relief for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

2017) (citation omitted). Under that standard, the court must “uphold the agency’s

determination unless compelled to conclude to the contrary.” Singh v. Whitaker, 914

F.3d 654, 658 (9th Cir. 2019) (internal quotation marks omitted). “The possibility

of drawing two inconsistent conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by substantial evidence.” Go

v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (citation omitted).

2. Substantial evidence supports the BIA’s denial of the claims for

asylum, withholding of removal, and humanitarian asylum. In order for Jeronimo-

Sales to succeed on those claims, she must demonstrate that a nexus exists between

her feared persecution and her membership in a particular social group. Reyes v.

Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (asylum and withholding of

removal); Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004) (humanitarian

asylum). Here, Jeronimo-Sales identifies three protected grounds that allegedly

motivated the gang violence against her: (1) her membership in a class of people

who took concrete steps to resist gang recruitment, (2) her gender as a woman, and

(3) her family membership.

2 The record does not compel the conclusion that Jeronimo-Sales was targeted

by the Mara 18 gang because of her resistance to gang recruitment. Jeronimo-Sales

testified she encountered the Mara 18 on two instances: first in 2008 and again in

2013. According to Jeronimo-Sales, gang members initially approached her in 2008

because they spotted her boyfriend and her in a field, and after the couple refused to

join, the gang members “went another way.” Five years later, in 2013, they were

approached again, but Jeronimo-Sales did not recognize any gang members from the

earlier encounter. Given the discrete and seemingly random nature of the contacts

in this case, the record does not compel the conclusion that Jeronimo-Sales was

specifically targeted for gang violence because of her resistance to gang recruitment.

Because Jeronimo-Sales did not demonstrate a nexus between the threat of harm and

her resistance to gang recruitment, there is no need to reach her alternative argument

that the BIA erred in holding that “youths who take concrete steps to oppose gang

membership and authority” was not a cognizable particular social group in this case.

Nor does the record compel the conclusion that Jeronimo-Sales was targeted

because of her gender. On both occasions, the gang members approached both

Jeronimo-Sales and her boyfriend for recruitment. It is true that she, and not her

boyfriend, suffered a miscarriage after the 2013 encounter. But at the same time,

the record is unfortunately silent (in part because of Jeronimo-Sales’s own memory

loss and her boyfriend’s refusal to discuss the events) on the motivations behind the

3 gang violence. Moreover, the recruitment efforts and threats did appear to be

directed at both her and her boyfriend, and on top of that, she testified that her

boyfriend was attacked by gang members separately after the couple moved to

Mexico. Thus, the record does not compel the conclusion that Jeronimo-Sales was

subject to persecution because of her gender.

Finally, the record does not compel the conclusion that Jeronimo-Sales was

targeted because of her family membership. The record shows that her two brothers

have been able to remain in Guatemala without being subjected to gang violence or

recruitment attempts, which undermines her assertion that the gang is specifically

targeting people with her family name. Jeronimo-Sales also does not explain the

connection between her uncle’s acts of violence and the two encounters she had with

entirely different gang members; even accepting that her uncle may have been

affiliated with the Mara 18, that does not compel the conclusion that her later

experiences were anything other than random, discrete acts of violence. For these

reasons, we deny the petition as to the claims for asylum, withholding of removal,

and humanitarian asylum.

3. Substantial evidence also supports the BIA’s denial of Jeronimo-

Sales’s claim for relief under the CAT. Jeronimo-Sales must establish that “it is

more likely than not” that she would be tortured if removed to Guatemala. Garcia-

Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. §

4 208.16(c)(2)). And “the torture must be ‘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.’” Id. (quotation omitted). It is not enough for law enforcement to be aware

of a crime; “there must be evidence that the police are unable or unwilling to oppose

the crime.” Id. at 1034.

Here, the evidence does not compel the conclusion that Jeronimo-Sales will

more likely than not be tortured if she goes back to Guatemala. The record shows

that her two brothers have been able to remain in Guatemala without being subjected

to gang violence. See Singh, 914 F.3d at 663. Nor does the record compel the

conclusion that the Mara 18 gang members acted with acquiescence from the

Guatemalan government. There is no indication that Jeronimo-Sales ever reported

either of the gang encounters to law enforcement in Guatemala. That is certainly not

dispositive, see Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017)

(en banc), but in this case, the record does not otherwise suggest that the police

would have been unable or unwilling to intervene had they known about the

incidents. Indeed, the fact that the gang members threatened Jeronimo-Sales against

going to the police undercuts the conclusion that the government would have been

unable or unwilling to control the Mara 18. Thus, we deny the petition as to the

claim for CAT protection.

5 Finally, as part of the petition for review of the denial of CAT protection,

Jeronimo-Sales argues that the BIA erred in affirming the IJ’s choice to designate

Mexico, instead of Guatemala, as the primary country of removal for her youngest

child. But Jeronimo-Sales declined to designate any country of removal for either

herself or her children. And in those circumstances, the IJ properly considered the

youngest child’s citizenship in designating Mexico as the primary country of

removal. See Jama v. ICE, 543 U.S. 335, 341 (2005). Not only that, but the IJ did

designate Guatemala as the alternate country of removal, concluding that “the

alternate country of removal with the rest of the family to Guatemala would be what

would happen.”

DENIED.