Ceferino De La O-Zelaya v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2021
• Docket: 20-73268
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CEFERINO DE LA O-ZELAYA; et al., No. 20-73268

Petitioners, Agency Nos. A208-888-523 A208-888-524 v. A208-577-608 A208-577-609 MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent.

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

Argued and Submitted December 10, 2021 Seattle, Washington

Before: McKEOWN, MILLER, and BADE, Circuit Judges.

Petitioners Ceferino De La O-Zelaya and Rosa Gomez De La O, husband

and wife, and their two minor children petition for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of their appeal from an Immigration

Judge’s (“IJ”) decision denying their applications for asylum, withholding of

removal, humanitarian asylum, and protection under the Convention Against

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

1. Substantial evidence supports the agency’s finding that Petitioners

failed to demonstrate that the Salvadoran government was or would be unable or

unwilling to control their alleged persecutors. See Ahmed v. Keisler, 504 F.3d

1183, 1191 (9th Cir. 2007) (“The source of the persecution must be the

government or forces that the government is unwilling or unable to control.”).

After De La O-Zelaya was shot, the police went to the hospital to “gather

information,” and, in response to the officers’ questions, De La O-Zelaya

explained: “I was in the gathering or meeting with the party, and somebody shot.

I don’t know who did it.” When, as here, “‘the asylum applicant fail[s] to provide

the police with sufficiently specific information to permit an investigation or an

arrest,’ the police’s inability to solve a crime does not show government inability

or unwillingness to control persecutors.” J.R. v. Barr, 975 F.3d 778, 783–84 (9th

Cir. 2020) (quoting Doe v. Holder, 736 F.3d 871, 878 (9th Cir. 2013)); see, e.g.,

Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (per curiam); Nahrvani v.

Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).

Moreover, country conditions evidence shows that El Salvador has taken

steps to curb gang violence and corruption. These efforts support the agency’s

finding. Cf. Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064–65 (9th Cir. 2020);

2 see also Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (“To reverse the

BIA, we must determine that the evidence not only supports [a contrary]

conclusion, but compels it . . . .” (first alteration in original) (internal quotation

marks omitted)).

We reject De La O-Zelaya’s argument that the agency failed to analyze

whether the evidence demonstrates that the Salvadoran government was “unable or

unwilling” to control his alleged persecutors. See Larita-Martinez v. INS, 220 F.3d

1092, 1095 (9th Cir. 2000). The agency analyzed the impact of recent local

elections, that the police took a report from De La O-Zelaya about his shooting

while he was in the hospital, and the Salvadoran government’s efforts to control

gang violence on this inquiry. Consequently, although the clarity of the agency’s

decision is “less than ideal,” we conclude that it sufficiently conveys the IJ’s

conclusion that Petitioners did not establish that the Salvadoran government was

unable or unwilling to control the source of the alleged persecution. Cf. Garland v.

Dai, 141 S. Ct. 1669, 1679 (2021) (explaining that “a reviewing court must uphold

even a decision of less than ideal clarity if the agency’s path may reasonably be

discerned” (internal quotation marks omitted)). Petitioners’ asylum and

withholding of removal claims therefore fail.

2. The agency’s denial of De La O-Zelaya’s request for humanitarian

asylum, see 8 C.F.R. § 1208.13(b)(1)(iii), is supported by substantial evidence. To

3 be eligible for humanitarian relief, “an applicant must still establish past

persecution on account of a protected ground.” Belishta v. Ashcroft, 378 F.3d

1078, 1080 (9th Cir. 2004). Petitioners failed to do so here.

3. Substantial evidence supports the IJ’s denial of CAT relief because

Petitioners failed to show that it is more likely than not that they will be tortured by

or with the consent or acquiescence of the government if returned to El Salvador.

See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that

the police were aware of a particular crime, but failed to bring the perpetrators to

justice, is not itself sufficient to establish acquiescence in the crime.”); id. at 1035

(concluding a government’s efforts to combat certain acts of violence supported

the agency’s determination that the government was not willfully blind, even

though, “as a practical matter,” those steps did “not achieve[] the desired goals of

resolving crimes and protecting citizens”).1

The petition for review is DENIED.

1 The court need not address Petitioners’ remaining arguments on appeal. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).