Jimenez Melo v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 18, 2025
• Docket: 23-3823
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIEGO ALEJANDRO JIMENEZ No. 23-3823 MELO; YINNA PAOLA GOMEZ Agency Nos. PERILLA; NICOL VALERIA CLAROS A240-247-106 GOMEZ; SAMUEL ALEJANDRO A220-961-630 JIMENEZ GOMEZ; SARA ALEJANDRA A220-961-631 JIMENEZ GOMEZ, A220-961-632 A220-961-633 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted February 13, 2025** Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and BENNETT, 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Petitioner Diego Alejandro Jimenez Melo (“Jimenez Melo”) and his partner

Yinna Paula Gomez Perilla with their three minor children (“Co-Petitioners”)

(collectively, “Petitioners”), natives and citizens of Colombia, petition for review

of the Board of Immigration Appeals’ (“BIA”) order affirming the immigration

judge’s (“IJ”) order denying their applications for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”).

“Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019). The court reviews legal determinations de novo and factual determinations

for substantial evidence. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir.

2022). “Under the substantial evidence standard, administrative findings of fact

are conclusive unless any reasonable adjudicator would be compelled to conclude

to the contrary.” Id. (citation omitted) (emphasis in original). We have

jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

Substantial evidence supports the BIA’s determination that Petitioner did not

demonstrate a nexus between his alleged persecution from the Revolutionary

Armed Forces of Colombia (“FARC”) and his particular social group of “former

military of Colombia,” and his applications for asylum and withholding of removal

were properly denied on that ground. An applicant for asylum or withholding of

2 23-3823 removal bears the burden of demonstrating (1) the existence of a cognizable

particular social group, (2) their membership in that particular social group, and (3)

a risk of persecution on account of membership in the specified particular social

group. Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016). “The third

element is often referred to as the ‘nexus’ requirement.” Id.

To demonstrate the requisite nexus, Jimenez Melo had to establish that his

past military experience was “one central reason” (for asylum) or “a reason” (for

withholding of removal) that FARC harmed him or will harm him. See Rodriguez-

Zuniga v. Garland, 69 F.4th 1012, 1018 (9th Cir. 2023); 8 U.S.C.

§§ 1158(b)(1)(B)(i), 1231(b)(3)(A), 1231(b)(3)(C). The BIA concluded that

Jimenez Melo did not satisfy either standard because he did not present sufficient

evidence to demonstrate that FARC knew of his military experience, let alone

recruited, threatened, or harmed him because of it. Jimenez Melo asserts that

while FARC is “typically interested in everyone[,]” it is most interested in former

military members, and FARC could have determined that he had military

experience from his job working in surveillance, a common job for former military

members, and sought him out for that reason. Given the other evidence in the

record which demonstrates FARC’s widespread recruitment efforts, this evidence,

without more, does not compel a finding of nexus between his military experience

and his alleged persecution from FARC.

3 23-3823 Substantial evidence also supports the BIA’s finding that Co-Petitioners do

not have a well-founded fear of persecution, and their applications for asylum and

withholding of removal were properly denied on this basis. Applicants for asylum

bear the burden of proving past persecution or a well-founded fear of persecution

on account of a protected ground.1 See 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(B)(i). To be well-founded, a petitioner’s fear of future persecution

must be “objectively reasonable.” Parada v. Sessions, 902 F.3d 901, 909 (9th Cir.

2018).

Co-Petitioners assert that they have a well-founded fear of persecution on

account of being family members of Jimenez Melo. FARC threatened Jimenez

Melo with harm to his family, but they never directly threatened Co-Petitioners.

Further, Co-Petitioners never had any contact with FARC, they voluntarily visited

Colombia while living in Mexico, and Jimenez Melo’s other immediate family

members living in Colombia have not been threatened or harmed by FARC. See

Loho v. Mukasey, 531 F.3d 1016, 1017–1018 (9th Cir. 2008) (stating that a

petitioner’s “history of willingly returning to his or her home country militates

against a finding of . . . a well-founded fear of future persecution”); Tamang v.

Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (“[F]ear of future persecution is

1 Co-Petitioners waived any argument that they experienced past persecution in Colombia by not raising past persecution in their opening brief. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003).

4 23-3823 weakened, even undercut, when similarly-situated family members living in the

petitioner’s home country are not harmed.”) (cleaned up).

Finally, there is substantial evidence supporting the BIA’s denial of

Petitioners’ request for CAT protection because Petitioners did not establish a clear

probability of torture by or with the acquiescence of a government official. See

Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006). Petitioners did

not cite any direct evidence that government officials in Colombia were aware of

and acquiesced in any FARC plan to torture Jimenez Melo. See id. Petitioners

contend that the BIA erred by not adequately considering the country conditions

evidence, asserting that the corruption in Colombia is such that at least one official

would acquiesce to torture, but the general ineffectiveness of the Colombian

government to stop FARC from committing crimes is not enough on its own to

show government acquiescence. See Andrade-Garcia v. Lynch, 828 F.3d 829, 836

(9th Cir. 2016).

PETITION DENIED.

5 23-3823