Gonzalez Herrera v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2023
• Docket: 22-2015
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARITZA MAGDALENA GONZALEZ No. 22-2015 HERRERA; KIMBERLY STEFANIA Agency Nos. AMBELIS GONZALEZ; SCYNTHIA A206-362-224 VIRGINIA AMBELIS GONZALEZ, A206-362-225 A206-362-226 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 7, 2023** Seattle, Washington

Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.

Maritza Gonzalez Herrera and her two daughters, Kimberly Gonzalez and

Scynthia Gonzalez, citizens of Guatemala, petition for review of the Board of

* 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). Immigration Appeals’ (BIA) dismissal of their appeal from an Immigration

Judge’s (IJ) denial of their applications for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT).1 Their claims are related

to an abusive relationship between Kimberly and a private citizen of Guatemala,

Edgar Perez. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petitions.

1. Substantial evidence supports the BIA’s determination that Petitioners

are not eligible for asylum or withholding of removal. Assuming Petitioners are

part of a particular social group, “[t]he lack of a nexus to a protected ground is

dispositive of [Petitioners’] . . . claims.” Riera-Riera v. Lynch, 841 F.3d 1077,

1081 (9th Cir. 2016).2 The BIA adopted the IJ’s finding that Perez did not harm

Kimberly on account of any statutorily protected characteristic. Record evidence

concerning the history of the relationship between Kimberly and Perez supports

this determination; on appeal, Kimberly identifies evidence indicating only that

Perez was motivated to harm her because of a personal obsession with her. Perez’s

1 Each Petitioner filed an individual asylum application, and Gonzalez Herrera also identified her two daughters as derivative beneficiaries on her asylum application. See U.S.C. § 1158(b)(3)(A). 2 Where the petitioner fails to establish a nexus between the claimed persecution and a protected ground, there is no distinction between the “one central reason” requirement for an asylum claim and “a reason” requirement for a withholding of removal claim. See Zetino v. Holder, 622 F.3d 1007, 1015–16 (9th Cir. 2010); Santos-Ponce v. Wilkinson, 987 F.3d 886, 890–91 (9th Cir. 2021).

2 22-2015 apparent personal obsession does not demonstrate that Kimberly was “individually

targeted on account of a protected ground.” Hussain v. Rosen, 985 F.3d 634, 646

(9th Cir. 2021); cf. Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013)

(“[M]istreatment motivated purely by personal retribution will not give rise to a

valid asylum claim.”). Accordingly, we deny her petition.

Moreover, substantial evidence supports the BIA’s conclusion that Perez’s

motivation to harm Gonzalez Herrera and Scynthia was not on account of their

statutorily protected characteristics, but rather “to ensure that neither caused

trouble for [Perez].” Kimberly testified that Perez posed a threat to her family

members because they could prevent him from harming her, and Petitioners do not

point to any record evidence indicating that Perez was motivated to harm Gonzalez

Herrera or Scynthia for any reason other than to assert control over Kimberly

without impediments. Accordingly, we deny Gonzalez Herrera’s and Scynthia’s

petitions. Cf. Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1020 (9th Cir. 2023)

(holding that targeting a family member “only as an instrumental means” did not

establish persecution motivated by a familial relationship).

2. Substantial evidence supports the BIA’s determination that Petitioners

failed to establish eligibility for CAT protection. Petitioners failed to show a

likelihood that they would be tortured if they return to Guatemala. 8 C.F.R.

§ 1208.16(c)(2); see Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005).

3 22-2015 Kimberly testified that she did not know whether Perez was in Guatemala, and

made no showing that he is likely to find Kimberly or to assault her again. See

Blandino-Medina v. Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (holding that “a

series of worst-case scenarios” is insufficient to meet a petitioner’s burden to show

likelihood of future torture). Nor have Gonzalez Herrera and Scynthia identified

any evidence that challenges the BIA’s determination that their fear of future

torture is “entirely speculative.” Therefore, substantial evidence supports the

BIA’s conclusion that Petitioners “failed to demonstrate a greater than 50 percent

chance of torture.” See Nuru, 404 F.3d at 1221.

Substantial evidence supports the BIA’s determination that protection under

the CAT is independently unwarranted because Petitioners have failed to show that

the Guatemalan government would acquiesce or consent to any future torture. See

Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008); see also 8 C.F.R.

§ 1208.18(a)(1). “The inability to bring [a] criminal[] to justice is not evidence of

acquiescence,” and because Petitioners have not presented evidence “establishing

government complicity in the criminal activity,” they do not qualify for protection

under the CAT. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

PETITONS DENIED.

4 22-2015