Diana Vasquez-Castillo v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 2022
• Docket: 20-72565
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIANA ASTRID VASQUEZ-CASTILLO; No. 20-72565 MARIO CRISTOPHER GARCIA VASQUEZ, Agency Nos. A208-175-115 A208-175-116 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 4, 2022** Pasadena, California

Before: CALLAHAN and H. THOMAS, Circuit Judges, and HUMETEWA,*** District 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). *** The Honorable Diane J. Humetewa, United States District Judge for the District of Arizona, sitting by designation. Petitioner Diana Vasquez-Castillo1, a native and citizen of El Salvador,

petitions for review of a Board of Immigration Appeals (“Board”) decision

dismissing an appeal from an immigration judge order denying her applications for

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”), and protection under Article III of the United Nations Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

We review the Board’s factual findings under the deferential “substantial

evidence” standard. See Zetino v. Holder, 622 F.3d 1007, 1015–16 (9th Cir. 2010)

(reviewing nexus determination under substantial evidence standard); INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992), superseded by statute on other grounds, 8

U.S.C. § 1252(b)(4)(B). Under this standard, the petition for review must be denied

if the Board’s determination was “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Elias–Zacarias, 502 U.S.

at 481 (quoting 8 U.S.C. § 1105a(a)(4)). Petitioner bears the burden of proving she

is eligible for asylum or withholding of removal. See 8 C.F.R. §§ 1208.13, 1208.16.

1 Ms. Vasquez-Castillo’s minor son was also listed as a derivative on her asylum application. We refer to Ms. Vasquez-Castillo as Petitioner.

2 Substantial evidence supports the Board’s conclusion that Petitioner’s

subjective fear of gang retaliation upon her return to El Salvador is not objectively

reasonable because her family continues to live safely and unharmed there. See

Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (finding “[a]n applicant’s claim

of persecution upon return is weakened, even undercut, when similarly-situated

family members continue to live in the country without incident”), superseded by

statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th

Cir. 2007).

Substantial evidence supports the Board’s conclusion that Petitioner’s fear of

gang violence is unrelated to any protected ground and instead based on harm from

criminals who are generally motivated by gang violence.2 See Elias-Zacarias, 502

U.S. at 482 (affirming that persecution must be “on account of” a protected ground

to warrant relief under the INA); Zetino, 622 F.3d at 1016 (a petitioner’s “desire to

be free from harassment by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground”). Substantial evidence also supports

the Board’s conclusion that Petitioner failed to meet her burden to show the

2 We need not consider whether Petitioner’s particular social group, “member of her father’s family,” is cognizable because the nexus to a statutorily protected ground is independently dispositive of her claim. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (“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.”) (quoting INS v. Bagamasbad, 429 U.S. 24, 25 (1976)).

3 government is unable or unwilling to protect her from any purported harm. Other

than speculative fear, Petitioner offered no objective evidence to support her

allegation on that issue. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th

Cir. 2005) (finding petitioner’s failure to report non-governmental persecution

because of a belief that police would take no action did not establish that government

was unwilling or unable to control the persecution).

Substantial evidence also supports the Board’s conclusion that because

Petitioner failed to meet her burden to establish eligibility for asylum, it necessarily

follows that she cannot meet the higher burden that is required to establish eligibility

for withholding of removal. Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.

2006) (“Since Zehatye could not establish her eligibility for asylum, the

[Immigration Judge] properly concluded that she was not eligible for withholding of

removal, which imposes a heavier burden of proof.”).

Finally, substantial evidence supports the Board’s conclusion that Petitioner

failed to establish her CAT claim because she did not provide sufficient evidence to

prove she is more likely than not to be tortured in El Salvador by or with the

acquiescence of public officials. Petitioner provided a general report indicating that

“[w]omen’s rights NGOs claimed that many violent crimes against women occurred

within the context of gang structures[.]” General reports like this one, without more,

are insufficient to compel the conclusion that Petitioner is more likely than not to be

4 tortured. See Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (finding

that general reports indicating torture occurred in a petitioner’s country, without

more, did not “compel the conclusion that Almaghzar would be tortured if

returned”).

PETITION DENIED.