Eswin Noy-Olley v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 8, 2021
• Docket: 19-72367
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESWIN NOY-OLLEY, AKA Eswin No. 19-72367 Nojollej, Agency No. A087-528-188 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.

Eswin Noy-Olley petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge (“IJ”)

decision denying his application for 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. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Torture (“CAT”) and his alternative request for post-conclusion voluntary

departure. We have jurisdiction to review the denial of CAT relief under 8 U.S.C.

§ 1252, and our jurisdiction to review the denial of voluntary departure is limited

to constitutional claims or questions of law. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (D);

1229c(f); see also Corro-Barragan v. Holder, 718 F.3d 1174, 1176–77 (9th Cir.

2013). “We review the BIA’s fact-finding for substantial evidence and may grant a

petition only if the evidence compels a conclusion contrary to the BIA’s

conclusion.” Rayamajhi v. Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019).

We deny the petition in connection with the CAT claim and dismiss the

remainder of the petition on jurisdictional grounds.

I

Substantial evidence supports the BIA’s conclusion that Noy-Olley had

failed to meet his burden of showing that the Guatemalan government is “more

likely than not” to “acquiesce” to any torture of Noy-Olley by the gang Mara

Salvatrucha (“MS-13”). 8 C.F.R. §§ 1208.16(c)(2); 1208.18(a)(1). Reyes-Reyes v.

Ashcroft, 384 F.3d 782, 787 (9th Cir. 2004) (“Acquiescence . . . is not limited to

actual knowledge, or willful acceptance; the willful blindness of government

officials suffices.” (quotation marks omitted)).

2 Noy-Olley produced no evidence of cooperation between Guatemalan

officials and MS-13 (or any other gang) in his hometown or the nearby towns

where MS-13 members assaulted him. To the contrary, Noy-Olley’s country

conditions evidence contains only general references to official corruption at the

national level that may hinder the effective policing of gangs in Guatemala, while

also indicating that the Guatemalan government has made some progress in

combating both corruption and gang violence. Notably, the only specific instance

of corruption to which Noy-Olley testified did not relate to the policing of gangs,

but concerned a traffic stop during which police officers pulled him over for a

traffic infraction, asked him for money, and then let him go, without a citation,

when he replied that he did not have any money.

Because the foregoing evidence does not amount to “significant evidence

establishing government complicity” in the criminal activity that “constitutes the

basis” of Noy-Olley’s CAT claim, we must uphold the BIA’s adjudication of that

claim. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016); see also, e.g.,

id. (upholding denial of CAT relief because, inter alia, “testimony that a

Guatemalan police officer took a bribe from a robber and released him” did not

demonstrate that the Guatemalan government would acquiesce in a gang’s

extortion of petitioner); cf. Madrigal v. Holder, 716 F.3d 499, 510 (9th Cir. 2013)

3 (noting “[v]oluminous” evidence that Mexican police “frequently work[ed]

directly on behalf of drug cartels” in remanding CAT claim for the BIA to

consider whether local or state officials would acquiesce to a drug cartel’s torture

of the petitioner); Zheng v. Ashcroft, 332 F.3d 1186, 1190–96 (9th Cir. 2003)

(remanding CAT claim where the petitioner feared torture by human traffickers,

and the record contained specific examples of collusion between local police and

such traffickers in the petitioner’s home province).

To the extent Noy-Olley requests that we infer the government’s willful

blindness from the sheer number of MS-13 members in Guatemala, we decline to

do so. Evidence of a serious gang problem in the country of removal is not itself

sufficient to establish the requisite acquiescence, absent particularized evidence

that official corruption enables or fuels that problem. See Garcia-Milian v. Holder,

755 F.3d 1026, 1034–35 (9th Cir. 2014). The prevalence of MS-13 in Guatemala

is of less probative value here in light of the record evidence reflecting that the

Guatemalan government has adopted and implemented antigang measures with

some success, albeit limited. See id. at 1035.

4 II

We lack jurisdiction over Noy-Olley’s challenge to the denial of his request

for voluntary departure because the BIA denied it on a factual basis, namely that he

did not have “the means to depart the United States.” 8 U.S.C. § 1229c(b)(1)(D);

see also 8 C.F.R. § 1240.26(c)(1)(iv). Because Noy-Olley’s challenge to the denial

of voluntary departure does not pose any questions of law, we lack jurisdiction to

review it. 8 U.S.C. §§ 1252(a)(2)(B)(i), (D); 1229c(f); Corro-Barragan, 718 F.3d

at 1176–77.1 Accordingly, we dismiss the remainder of the petition.

DENIED in part; DISMISSED in part.

1 Because the BIA found that Noy-Olley did not meet the statutory requirements for post-conclusion voluntary departure and we cannot review that decision, we need not reach his alternative challenges to the voluntary departure decision. 5