Calderon-Lopez De Rodriguez v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DARLIN XIOMARA CALDERON- No. 23-4151 LOPEZ DE RODRIGUEZ; et al., Agency Nos. A220-151-800 Petitioners, A220-151-801 A220-151-802 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted December 6, 2024** San Francisco, California

Before: BRESS and FORREST, Circuit Judges, and OHTA, District Judge.***

Darlin Xiomara Calderon-Lopez De Rodriguez and her two children petition

for review of the Board of Immigration Appeals’ (BIA) dismissal of their appeal

* 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 Jinsook Ohta, United States District Judge for the Southern District of California, sitting by designation. from the immigration judge’s (IJ) denial of asylum, withholding of removal, and

relief under the Convention Against Torture (CAT).1 We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition.

Where the BIA provides its own reasoning, as it did here, we review the BIA’s

decision, except to the extent it expressly adopts the IJ’s decision. Diaz-Reynoso v.

Barr, 968 F.3d 1070, 1075–76 (9th Cir. 2020) (citation omitted). We review factual

findings for substantial evidence and legal conclusions de novo. Plancarte Sauceda

v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). Under the substantial evidence

standard, we will reverse a factual finding only if “‘any reasonable adjudicator

would be compelled to conclude to the contrary’ based on the evidence in the

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

(quoting 8 U.S.C. § 1252(b)(4)(B)).

1. Asylum and Withholding of Removal. “For both asylum and

withholding claims, a petitioner must prove a causal nexus between one of her

statutorily protected characteristics and either her past harm or her objectively

tenable fear of future harm.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th

Cir. 2023). For asylum, the petitioner must show that her protected ground “was or

will be at least one central reason” for her past or feared future persecution. Barajas-

1 Calderon-Lopez’s two children are derivative beneficiaries of their mother’s asylum application.

2 23-4151 Romero v. Lynch, 846 F.3d 351, 358 (9th Cir. 2017) (emphasis omitted) (quoting 8

U.S.C. § 1158(b)(1)(B)(i)). And for withholding of removal, the petitioner must

establish that her protected ground is “a reason” for her persecution. Id. (emphasis

omitted) (quoting 8 U.S.C. § 1231(b)(3)(C)).

Substantial evidence supports the BIA’s conclusion that Calderon-Lopez

failed to establish a reasonable fear of persecution on account of a protected ground.

Calderon-Lopez asserted she was persecuted based on her membership in two

particular social groups: (1) former police officers and (2) former government

employees. The BIA did not address whether these groups are cognizable, and

instead concluded that Calderon-Lopez failed to establish the requisite nexus

between the harm she fears and her asserted protected grounds because she has not

proven that the perpetrators were motivated by anything other than generalized

crime. The BIA’s conclusion is consistent with the record, including Calderon-

Lopez’s testimony that she believed the perpetrators harmed her for criminal

reasons.

2. CAT. For CAT relief, the petitioner “must show that it is ‘more likely

than not that . . . she would be tortured if removed.’” Davila v. Barr, 968 F.3d 1136,

1144 (9th Cir. 2020) (quoting 8 C.F.R. § 208.16(c)(2)). Torture is “any act by which

severe pain or suffering, whether physical or mental, is intentionally inflicted on a

person . . . when such pain or suffering is inflicted by or at the instigation of or with

3 23-4151 the consent or acquiescence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 208.18(a)(1).

Calderon-Lopez argues that the BIA erred in failing to properly credit a

country report showing that the Guatemalan government is aware of illegal

activities, including torture of innocent parties, but has failed to intervene or prevent

such activity. Because the BIA adopted the IJ’s decision with direct citation to the

IJ’s discussion of the report, we conclude that the IJ and BIA properly considered

this evidence. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010)

(“Where, as here, the BIA incorporates parts of the IJ’s reasoning as its own, we

treat the incorporated part as the BIA’s.”) (citing Molina-Estrada v. INS, 293 F.3d

1089, 1093 (9th Cir. 2002)).

The IJ considered the country report and noted that it “indicates that the

Guatemalan government has investigated alleged incidents of political violence,

police corruption, violence against women, and other improper or illegal activities.”

Based on this evidence, the IJ determined that “the Guatemalan government has

made concrete efforts holding government officials responsible for wrongdoings and

they are not acquiescing to torture by government officials.” This finding is

consistent with the record and Calderon-Lopez’s testimony that Guatemalan

officials arrested and prepared to prosecute one of the perpetrators who assaulted

and stole from her.

4 23-4151 Additionally, “[e]vidence that the police were aware of a particular crime, but

failed to bring the perpetrators to justice, is not in itself sufficient to establish

acquiescence in the crime.” Instead, there must be evidence that the police are unable

or unwilling to oppose the crime.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034

(9th Cir. 2014). Because Calderon-Lopez presents no such evidence, the record does

not compel a determination that the BIA erred in denying Calderon-Lopez’s CAT

claim.

PETITION DENIED.

5 23-4151