Juliana Rodriguez-Mejia De Ca v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: January 11, 2023
• Docket: 21-1835
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-1835 _____________

JULIANA RODRIGUEZ-MEJIA DE CALO, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Final Order of the Board of Immigration Appeals No. A206-308-225 Immigration Judge: John P. Ellington ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 16, 2022

Before: RESTREPO, McKEE, and SMITH, Circuit Judges

(Opinion filed: January 11, 2023) _____________________

OPINION ______________________

McKEE, Circuit Judge:

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Juliana Rodriguez-Mejia De Calo (“Rodriguez-Mejia”) seeks review of the Board

of Immigration Appeals’ denial of her application for withholding of removal and relief

under the Convention Against Torture. An Immigration Judge denied Rodriguez-Mejia’s

petition because it found Rodriguez-Mejia did not testify credibly and did not meet her

burden of proof for withholding of removal and protection under the CAT. The BIA

presumed that Rodriguez-Mejia was credible but affirmed the IJ’s holding that

Rodriguez-Mejia did not meet her burden of proof for withholding of removal and

protection under the CAT. We will assume that Rodriguez-Mejia’s testimony was

credible because the BIA expressly declined to reach the IJ’s adverse credibility

determination.1 Despite Rodriguez-Mejia’s credible fear of returning to Guatemala, we

have no choice but to affirm the BIA’s decision and deny the petition for review because

of our deferential standard of review.2

I. Rodriguez-Mejia is a citizen of Guatemala. For several years, gang members

repeatedly threatened Rodriguez-Mejia and her son, Oliver, because he refused to join

their gang. They told Oliver “[t]hat if he did not work with them, they would kill his

whole family.”3 Gang members also beat Oliver, fracturing his head and arm, and pushed

Rodriguez-Mejia to the ground. Because she was afraid to file a complaint, Rodriguez-

Mejia did not make any reports to the police.

1 Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). 2 We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1). 3 AR 143.

2 Rodriguez-Mejia and Oliver attempted to escape the gangs by relocating to Santa

Lucia, a Guatemalan town six or seven hours from their home. Gang members found

them in Santa Lucia and tried to abduct Oliver while they were in a store. The police

were also in the store at the time and Rodriguez-Mejia asked the officers for help. The

police intervened and took Oliver to Rodriguez-Mejia’s sister-in-law’s house, but they

“didn’t do anything” to the gang members.4

In 2016, after the attempted abduction, Rodriguez-Mejia and Oliver moved to the

United States to escape the threats from gang members. Approximately ten months after

moving to the United States, gang members killed Rodriguez-Mejia’s cousin in

Guatemala because he would not disclose Rodriguez-Mejia’s and Oliver’s whereabouts.

II.

If the BIA “‘affirmed and partially reiterated’ the IJ’s determinations, we review

both decisions.”5 “If the BIA relied on only some of the grounds given for denying relief,

we review only those grounds.”6 “In reviewing decisions of the BIA, this Court applies a

deferential standard of review.”7 While we review legal determinations de novo,8 “factual

findings are subject to substantial-evidence review and may not be set aside ‘unless any

reasonable adjudicator would be compelled to conclude to the contrary.’”9

4 AR 147–48. 5 Blanco v. Att’y Gen., 967 F.3d 304, 310 (3d Cir. 2020) (quoting Sandie, 562 F.3d at 250). 6 Id. 7 Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). 8 Blanco, 967 F.3d at 310. 9 Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 91 (3d Cir. 2021) (quoting 8 U.S.C. § 1252(b)(4)(B)).

3 To be entitled to withholding of removal, “an applicant must prove that it is more

likely than not that he or she will be persecuted on account of race, religion, nationality,

membership in a particular social group, or political opinion upon removal to a particular

country.”10 Persecution, however, is not established by harm alone nor by a likelihood of

future harm. In addition, “the government must also be complicit to some degree in the

harm through either act or omission.”11 Thus, the applicant must establish that “the

government was ‘unable or unwilling to control’ the individual or group that committed

the harm.”12 The BIA’s determination as to whether an applicant has proven government

complicity is a finding of fact that is subject to substantial-evidence review.13

The BIA affirmed the IJ’s finding that Rodriguez-Mejia did not establish

persecution by gangs that the Guatemalan government was unable or unwilling to

control. The BIA explained that when gang members attempted to abduct Rodriguez-

Mejia’s son, “police intervened to protect her son, thus indicating that authorities were

both willing and able to protect her son.”14 Rodriguez-Mejia argues that the police’s

failure to arrest the gang members who tried to abduct her son, as well as country

conditions that indicate corruption within the police force, establishes that the BIA erred

in finding the police were willing and able to protect her son.

10 Id. at 86. 11 Id. at 86 & n.5. 12 Id. at 87 (quoting Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir. 2007)). 13 Id. at 91. 14 AR 4.

4 Although the police failed to arrest the gang members, they successfully thwarted

Oliver’s abduction and were responsive to Rodriguez-Mejia’s request for assistance. We

understand Rodriguez-Mejia’s argument to the contrary, but this record simply does not

allow us to reverse the BIA’s conclusion that she did not establish the required

acquiescence or complicity. “[I]f a government is willing and able to afford some

protection to an individual against harms inflicted by private actors, then that government

is not sufficiently complicit in the private conduct for those acts to constitute persecution

for purposes of relief from removal.”15 Rodriguez-Mejia’s focus on general corruption in

the police force is not enough to allow us to ignore the BIA’s finding and conclude that

the police are unwilling to intervene in gang operations. Moreover, “a government’s

inability or unwillingness to control a violent group as a general matter does not

necessarily mean that the government cannot or will not protect the specific applicant.”16

Because substantial evidence supports the BIA’s conclusion that Rodriguez-Mejia did not

establish that the Guatemalan government would be complicit in the harm caused by

gang members, we must affirm the BIA’s denial of Rodriguez-Mejia’s application for

withholding of removal.

To succeed on a CAT claim, an applicant must establish government acquiescence

to the torture she fears.17 “Acquiescence of a public official requires that the public

official, prior to the activity constituting torture, have awareness of such activity and

15 Galeas, 998 F.3d at 90. 16 Id. at 89. 17 Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).

5 thereafter breach his or her legal responsibility to intervene to prevent such activity.”18

Determining whether an applicant has established acquiescence involves a two-prong

inquiry. The first prong involves a factual finding as to how public officials will likely act

in response to the harm the applicant fears.19 As previously discussed, the BIA found that

when Rodriguez-Mejia requested the assistance of the police, the officers intervened to

protect her son. Substantial evidence supports the BIA’s conclusion that the government

would not acquiesce to Rodriguez-Mejia’s torture. We must therefore affirm the BIA’s

denial of Rodriguez-Mejia’s application for protection under the CAT.

III.

Although we are sympathetic to the very real dangers posed by gangs in

Guatemala, for the above reasons, we must deny Rodriguez-Mejia’s petition for review.

18 8 C.F.R. § 1208.18(a)(7). 19 Myrie, 855 F.3d at 516.