Chahuayo-Zevallos v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2025
• Docket: 24-88
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERLINDA CHAHUAYO- No. 24-88 ZEVALLOS; TREISY CERRON- Agency Nos. CHAHUAYO, A241-772-787 A241-772-788 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 11, 2025** San Francisco, California

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

Erlinda Chahuayo-Zevallos and her minor daughter, age 15, (collectively,

“Petitioners”) petition for review of an order from the Board of Immigration

Appeals (“BIA”) dismissing their appeal of an order from an Immigration Judge

* 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). (“IJ”), which denied their application for asylum, withholding of removal, and

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

under 8 U.S.C. § 1252(a)(1) and deny the petition.

We review the BIA’s legal determinations de novo and its factual findings

for substantial evidence. See Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th

Cir. 2023), as amended. “[O]ur review ‘is limited to the BIA’s decision, except to

the extent that the IJ’s opinion is expressly adopted.’” Shrestha v. Holder, 590 F.3d

1034, 1039 (9th Cir. 2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th

Cir. 2006)). “In reviewing the BIA’s decisions, we consider only the grounds relied

upon by that agency.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).

1. To establish eligibility for asylum and withholding of removal on the

basis of past persecution committed by nongovernmental actors, an applicant must

show that the government was or would be unwilling or unable to control the

private actor she fears. See J.R. v. Barr, 975 F.3d 778, 782 (9th Cir. 2020).

Substantial evidence supports the BIA’s determination that Petitioners failed to

establish the government was unwilling or unable to protect them. After Zevallos

filed a police report, the police issued a protective order against Zevallos’s former

partner. After the protective order was issued, Petitioners faced no physical harm.

Zevallos also failed to report to the authorities the discrimination she faced based

on her race and disability status. The BIA found that Petitioners failed to

2 24-88 demonstrate that reporting the discrimination would have been futile or would have

resulted in further harm. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058

(9th Cir. 2006). The evidence does not compel a contrary finding.

2. To establish eligibility for CAT relief, an applicant must demonstrate that

the torture she fears will be carried out with the consent or acquiescence of a public

official or another person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1);

see also Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).

Substantial evidence supports the BIA’s determination that Petitioners failed to

establish that the torture they fear will be carried out with the consent or

acquiescence of a public official. The IJ considered the record in its entirety,

including Petitioners’ evidence of country conditions, and the police previously

issued a restraining order against Zevallos’s former partner, indicating that the

Peruvian government would not acquiesce to any future torture.

PETITION DENIED.1

1 The stay of removal will remain in place until the mandate issues. The motion for stay of removal is otherwise denied.

3 24-88