Limascca Tello v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2025
• Docket: 24-946
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 15 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS LIMASCCA-TELLO; ERIKA No. 24-946 ESTEFANY HUAMAN- Agency Nos. SUAQUITA; LIONEL ADRIAN SUAREZ- A220-748-098 HUAMAN; JHOSEP DERIAN A220-748-099 LIMASCCA-HUAMAN, A220-748-100 A220-748-101 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted May 13, 2025** San Francisco, California

Before: McKEOWN and DE ALBA, 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)(C). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Petitioners Jose Limascca-Tello and Erika Estefany Huaman-Suaquita, both

natives and citizens of Peru, seek review from a decision of the Board of

Immigration Appeals (“BIA”) denying their applications for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”), and the

derivative applications of their children. Because the parties are familiar with the

facts, we do not recount them here. We have jurisdiction, see 8 U.S.C.

§ 1252(a)(1), and we deny the petition.

Where, as here, “the BIA conducts its own review of the evidence and law,”

our review is limited to the BIA’s decision, except to the extent that it expressly

adopts the decision of the immigration judge. Rodriguez v. Holder, 683 F.3d 1164,

1169 (9th Cir. 2012). We review de novo legal questions and the BIA’s “factual

findings for substantial evidence.” Corpeno-Romero v. Garland, 120 F.4th 570,

577 (9th Cir. 2024). Under the latter standard, we will uphold the BIA’s findings

“unless any reasonable adjudicator would be compelled to conclude to the

contrary[.]” 8 U.S.C. § 1252(b)(4)(B).

Substantial evidence supports the BIA’s denial of Petitioners’ applications

for asylum and withholding of removal on past persecution grounds. Petitioners

preliminarily argue that the BIA erred by finding that lead Petitioner Limascca-

Tello only suffered a single death threat. But given the lack of any indication that

pointing a firearm at Limascca-Tello was specifically a threat to kill him if he

2 24-946 attested to the crime, the BIA’s finding was not one with which “any reasonable

adjudicator would be compelled to conclude to the contrary.” Id.

We conclude that, under either de novo or substantial evidence review, the

BIA correctly determined that Petitioners failed to establish that the lone threat

“r[ose] to the level of persecution.” Navas v. INS, 217 F.3d 646, 655 (9th Cir.

2000); see also Fon v. Garland, 34 F.4th 810, 813 n.1 (9th Cir. 2022) (identifying

the intra-circuit split on the standard of review that governs these determinations

but declining to address the issue because it made no difference to the result).

While we have held that persistent, escalating death threats accompanied by

physical intimidation may amount to persecution, see, e.g., Ruano v. Ashcroft, 301

F.3d 1155, 1159–61 (9th Cir. 2002), the death threat here was a single isolated

occurrence. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). The BIA

correctly relied on Hoxha to conclude that Petitioners failed to establish their

eligibility for asylum or withholding of removal. See 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A); see also Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021).

Substantial evidence supports the BIA’s determination that Petitioners failed

to establish past persecution or a well-founded fear of persecution by forces that

the Peruvian government is “unable or unwilling” to control. See Navas, 217 F.3d

at 655–56; Siong v. INS, 376 F.3d 1030, 1039 (9th Cir. 2004). Because Limascca-

Tello failed to report the persecution to government authorities, he must fill that

3 24-946 gap in proof by establishing that reporting the crime “would have been futile or

[would] have subjected him to further abuse.” Bringas-Rodriguez v. Sessions, 850

F.3d 1051, 1065 (9th Cir. 2017) (en banc) (citation omitted). The BIA reasonably

determined that evidence of “government-wide corruption,” “without more,” could

not satisfy that showing in light of the police investigation into the murder, which

reflected the Peruvian government’s willingness “to investigate crime and protect

its citizenry.”

Finally, substantial evidence supports the BIA’s denial of CAT relief. The

BIA reasonably determined that because Petitioners had not suffered past

persecution, neither had they suffered past torture. See Sharma, 9 F.4th at 1067.

The BIA also reasonably concluded that Petitioners failed to establish a “more

likely than not” probability of facing future torture if returned to Peru, given the

police investigation of the murder. Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188

(9th Cir. 2020) (citing 8 C.F.R. § 1208.16(c)(2)–(3)); see 8 C.F.R. § 1208.18(a)(1).

We decline to address Petitioners’ remaining arguments that they

established a cognizable particular social group; that they demonstrated an

objective well-founded fear of persecution; and that the BIA erred by failing to

adequately weigh their unexhausted country conditions report in denying CAT

relief. The BIA specifically denied all relief for the reasons we have discussed and

expressly declined to reach “the remaining issues addressed in the Immigration

4 24-946 Judge’s decision or by [petitioners] on appeal.” Because “[o]ur review is limited

to the actual grounds relied upon by the BIA,” we decline to reach Petitioners’

remaining arguments as well. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.

2010) (citation omitted).

PETITION DENIED.

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