Blanca Guaylla-Paguay v. Attorney General United States of America

• Court: Court of Appeals for the Third Circuit
• Decided: July 9, 2024
• Docket: 23-2122
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-2122 ____________

BLANCA ELIZABETH GUAYLLA PAGUAY, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Petition for Review from the Board of Immigration Appeals (A209-241-672) Immigration Judge: Shifra Rubin ____________

Submitted Under Third Circuit L.A.R. 34.1(a) on March 8, 2024

Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges

(Opinion filed: July 9, 2024)

_______________

OPINION * _____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FREEMAN, Circuit Judge.

Blanca Guaylla Paguay petitions for review of the Board of Immigration Appeals’

decision affirming the denial of her applications for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). For the reasons that follow, we

will deny the petition.

I

Guaylla Paguay is a native and citizen of Ecuador. She entered the United States

without inspection in 2016, and shortly thereafter the Department of Homeland Security

initiated removal proceedings against her. The agency charged her with being subject to

removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) because she was present in the United

States without being admitted or paroled. She conceded her removability, and the

Immigration Judge (IJ) sustained the charge.

Guaylla Paguay subsequently filed applications for asylum, withholding of removal,

and protection under CAT. The IJ determined that Guaylla Paguay failed to prove a nexus

between any harm she experienced in Ecuador (or the future harm she fears) and her

membership in a particular social group, so it denied the application for asylum and

withholding of removal. The IJ also denied the application for CAT protection, concluding

that Guaylla Paguay did not show she was more likely than not to be tortured if she returned

to Ecuador.

Guaylla Paguay appealed to the BIA, which effectively affirmed the IJ’s decision

on all three forms of relief. She timely petitioned this Court for review.

2 II

We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.

§ 1252(a)(1). We review the BIA’s legal determinations de novo, and we review the

underlying factual findings for “substantial evidence.” S.E.R.L. v. Att’y Gen., 894 F.3d

535, 543 (3d Cir. 2018). Under the substantial evidence standard, we must “uphold the

agency’s determination unless the evidence would compel any reasonable fact finder to

reach a contrary result.” Sesay v. Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015).

Where the BIA has adopted and affirmed the IJ’s decisions, we review both the IJ

and BIA opinions. See S.E.R.L., 894 F.3d at 543. However, “we look to the IJ’s opinion

only where the BIA has substantially relied on that opinion.” Id. (internal quotation marks

omitted).

III

A

To be eligible for asylum, Guaylla Paguay must establish that she is a refugee within

the meaning of 8 U.S.C. § 1101(a)(42). See S.E.R.L., 894 F.3d at 543–44. She may do so

by showing past persecution or a well-founded fear of persecution in Ecuador based on her

membership in a particular social group (“PSG”). See 8 U.S.C. § 1158(b)(1)(B)(i);

S.E.R.L., 894 F.3d at 543–44. “A showing of past persecution gives rise to a rebuttable

presumption of a well-founded fear of future persecution.” Thayalan v. Att’y Gen., 997

F.3d 132, 138 (3d Cir. 2021).

3 Guaylla Paguay contends that her testimony before the IJ established the requisite

nexus between the harm she experienced in Ecuador and her membership in the PSG “Head

of Household as Ecuadorian Woman.” Opening Br. at 13. But substantial evidence

supports the agency’s finding that her membership in that group was not “one central

reason” for her persecution. See Thayalan., 997 F.3d at 138 (“[P]ersecution is not on

account of a protected ground unless that ground is at least one central reason why the

applicant was or will be targeted.” (internal quotation marks omitted)); 8 U.S.C.

§ 1158(b)(1)(B)(i).

At the merits hearing before the IJ, Guaylla Paguay testified that a local gang in

Ecuador called Sombra Negra (translated as the “Black Shadow”) demanded regular

protection payments and that she and her siblings were attacked after refusing to pay. She

made only a conclusory assertion that the violence she alleged was related to her

membership in the PSG “Head of Household as Ecuadorian Woman.” And when the IJ

specifically asked Guaylla Paguay if members of Sombra Negra ever said that they were

threatening her because she was a woman, Guaylla Paguay said no. Instead, Guyalla

Paguay affirmed multiple times that the attacks on her and her siblings were connected to

the extortion payments and the gang’s desire for money, without mentioning any additional

motivation. She added on cross-examination that the attacks stopped during the years that

4 she paid the extortion money. Therefore, substantial evidence supported the BIA’s no-

nexus finding.1

B

Guaylla Paguay also asserts that the BIA erroneously affirmed the denial of her CAT

claim.2 The BIA’s review of a CAT claim proceeds in two steps. “First, the agency must

determine ‘whether an applicant has met the burden of establishing that it is more likely

than not [she] would be tortured if removed.’ Second, the agency asks whether public

officials will acquiesce in the likely treatment.” Quinteros v. Att’y Gen., 945 F.3d 772, 786

(3d Cir. 2019) (quoting Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017)).

Guaylla Paguay argues that the IJ erred at the first step by failing to make findings

about whether she is more likely than not to be tortured if removed. We disagree. The IJ

found that she did not prove she was more likely than not to be tortured. In support of this

finding, the IJ noted that Guaylla Paguay’s siblings continued to reside in Ecuador

unharmed for three years after she left, and only a rumor supported her fear that Sombra

1 It is unclear from her brief whether Guaylla Paguay seeks review of the agency’s denial of her application for withholding of removal. In any event, because withholding of removal has a more demanding standard than asylum, any challenge would fail. See Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011). 2 Notwithstanding the government’s arguments to the contrary, Guaylla Paguay exhausted her CAT arguments on appeal to the BIA. See Luziga v. Att’y Gen., 937 F.3d 244, 251 (3d Cir. 2019) (“[O]ur exhaustion policy is liberal: if the petitioner makes some effort, however insufficient, that puts the agency on notice of a straightforward issue, the requirement is satisfied.” (internal quotation marks omitted)). She also preserved them in her opening brief here.

5 Negra was looking for her. The BIA found no error in these findings, and they were

supported by substantial evidence.

Upon finding an insufficient likelihood of torture, the IJ did not proceed to Myrie’s

second step: addressing government acquiescence. Guaylla Paguay contends that this

amounts to noncompliance with Myrie. But any failure to address government

acquiescence was harmless where Guaylla Paguay did not meet her burden at Myrie’s first

step. See Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011).

* * *

For the foregoing reasons, we will deny the petition for review.