D. P. v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2025
• Docket: 23-4233
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

D.P., No. 23-4233 Agency No. Petitioner, A216-642-600 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 3, 2024** San Francisco, California

Before: TYMKOVICH***, M. SMITH, and BUMATAY, Circuit Judges.

* 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 Timothy M. Tymkovich, United States Circuit Judge for the Court of Appeals, 10th Circuit, sitting by designation. Petitioner D.P.,1 a Colombian national, petitions for review of the Board of

Immigration Appeals’ (BIA) decision affirming the immigration judge’s (IJ) denial

of her withholding of removal claim. We deny the petition.

We review legal issues de novo, and administrative findings of fact for

substantial evidence. See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014); 8

U.S.C. § 1252(b)(4)(B). In other words, we uphold factual findings by the agency

“unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016) (quoting

Garcia, 749 F.3d at 789).

1. Substantial evidence supports the denial of D.P.’s withholding of

removal claim. “To demonstrate entitlement to asylum or withholding of removal

on the basis of past persecution, an applicant must present substantial evidence of

‘(1) an incident, or incidents, that rise to the level of persecution; (2) that is on

account of one of the statutorily-protected grounds; and (3) is committed by the

government or forces the government is either unable or unwilling to control.’”

Doe v. Holder, 736 F.3d 871, 877–78 (9th Cir. 2013) (quoting Afriyie v. Holder,

613 F.3d 924, 931 (9th Cir. 2010)).

The third factor forecloses D.P.’s case. To be sure, neither party disputes

that the Colombian government was “willing” to protect her; the only question is

1 We grant D.P.’s unopposed motion to proceed pseudonymously.

2 23-4233 whether it was—and is—“able” to do so. The IJ answered that question in the

affirmative, and it had substantial evidence to back its conclusion. In response to

D.P.’s reports about the purported death threats made against her, Colombian law

enforcement officials issued a protective order and dispatched security to patrol

D.P.’s home three to four times per week. Although D.P. claims the police came

less frequently as time went on, that does not show the police were unable to

protect her. They continued to surveil D.P.’s home, and D.P. was never physically

harmed.

D.P. disputes none of this but instead relies on a statement made by a law

enforcement official who said they could not guarantee “full protection if

something were to happen” and suggested D.P. and her husband “leave the town”

or “why not leave the country.” That statement, however, is not enough to show

the Colombian government was unable to protect D.P. To begin, no government

can offer full protection from crimes or threats, so the statement at issue here is

insufficient to show the Colombian government in particular was unable to protect

her, or that she would not be safe in other parts of the country. Moreover, the law

enforcement official’s statement does not compel a contrary result considering that

the Colombian government did dispatch law enforcement to patrol her home

multiple times per week—and D.P. was never physically harmed. We have

“recognized that . . . inability to control persecutors is not demonstrated simply

3 23-4233 because the police ultimately were unable to solve a crime or arrest the

perpetrators.” Doe, 736 F.3d at 878.

Substantial evidence supports the conclusion that D.P. is not entitled to a

withholding of removal. See Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1065 (9th

Cir. 2020) (affirming the denial of a withholding claim because there was

“substantial evidence” to show the government was able and willing to help the

petitioner).2

2. D.P.’s due process challenge also fails. Although D.P. contends the IJ

did not consider critical pieces of evidence that were material to her claims, her

arguments indicate that she contests how the IJ interpreted the evidence—not

whether the IJ failed to consider them. For instance, D.P. claims the IJ ignored

evidence that her persecutors were affiliated with criminal organizations. But the

IJ did not ignore D.P.’s testimony; rather, he considered her testimony and

concluded it was speculative given that she did not personally know these

individuals’ identities.

The same is true for the rest of D.P.’s arguments. D.P. claims the IJ ignored

(1) the wedding day threat and (2) the law enforcement official’s statement that the

2 Before the IJ, D.P. asserted eligibility for withholding of removal not solely based on past persecution but also based on her allegedly well-founded fear of future persecution. Because D.P. has not established that the government is unwilling and unable to control her persecution, her claim based on future persecution is also untenable. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005).

4 23-4233 government could not assure her of full protection “if something were to happen.”

Both arguments are unavailing. To begin, the IJ did not ignore the wedding day

threat. Rather, the IJ stated there were five threats at issue in this case, which

necessarily includes the wedding day threat. He also described the threat in his

opinion—albeit in a way D.P. does not agree with (i.e., “demand for money”)—

and asked her about the wedding day threat during the hearing.

In addition, the IJ’s failure to mention the Colombian law enforcement

official’s statement in his opinion does not mean he overlooked it. The IJ could

have found it “outweighed by other more persuasive evidence.” Garland v. Ming

Dai, 593 U.S. 357, 373 (2021). D.P.’s claim that the IJ failed to consider this

statement is therefore unconvincing—especially when considering it would have

failed to overcome the lack of substantial evidence showing that the Colombian

government was “unwilling” and “unable” to protect her. See Doe, 736 F.3d at

877–78.

Finally, the fact that the IJ stated there was “no evidence” to support D.P.’s

claims for future persecution, or that she was targeted because of her particular

social group, reflects the IJ’s interpretation of the evidence; it does not mean the IJ

found no existence of such evidence in the record.

D.P. fails to establish a due process violation.

5 23-4233 3. D.P. also moved to stay her removal pending resolution of her petition

for review. We now deny that motion as moot.

PETITION DENIED.

6 23-4233