Maria Escobar-Guerra v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2022
• Docket: 21-70292
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA VICTORIA ESCOBAR GUERRA, No. 21-70292

Petitioner, Immigration File No. A208-581-377 v.

MERRICK GARLAND,

Respondent. MEMORANDUM*

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

Submitted January 12, 2022** Pasadena, California

Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF, *** District Judge.

Petitioner Maria Escobar Guerra is a young woman who fled El Salvador

because she was threatened by a gang member, “Pablo,” who would not take “No”

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel previously granted Petitioner’s unopposed motion for submission of this case without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. Page 2 of 5

for an answer: After she refused Pablo’s sexual propositions, he allegedly threatened

to kill her, she went into hiding in her home, and members of the man’s gang started

watching for her from outside her home. She fled to the United States, entered

without inspection in April 2016, and was apprehended shortly thereafter.

Escobar Guerra petitions for review of a Board of Immigration Appeals

(“BIA”) decision affirming and adopting an immigration judge’s (“IJ”) denial of

relief from removal under asylum, withholding of removal, and the Convention

Against Torture (“CAT”) on several independently sufficient grounds. We deny the

petition.

1. Where, as here, the BIA cites Matter of Burbano, 20 I&N Dec. 872, 874 (BIA

1994), “and also provides its own review of the evidence and law, we review both

the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir.

2011).1 “We review denials of asylum, withholding of removal, and CAT relief for

substantial evidence and will uphold a denial supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Aguilar Fermin v.

Barr, 958 F.3d 887, 891–92 (9th Cir. 2020). The “administrative findings of fact are

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

contrary.” 8 U.S.C. § 1252(b)(4)(B).

1 Unless otherwise specified, all internal quotation marks, alterations, emphases, elisions, and citations are omitted from all sources cited herein. Page 3 of 5

2. “[A]n applicant does not have a well-founded fear of future persecution if the

applicant could avoid persecution by relocating to another part of the applicant's

country,” unless doing so would be unreasonable under the applicant's

circumstances.” Hussain v. Rosen, 985 F.3d 634, 648-649 (9th Cir. 2021) (citing 8

C.F.R. § 1208.13(b)(2)(i)). Where, as here, the applicant fails to establish past

persecution and is seeking relief on the basis of a well-founded fear of persecution

by a non-state actor, the applicant bears the burden of showing that internal

relocation would be unreasonable. 8 C.F.R. § 1208.13(b)(3)(iii).

The IJ held that Escobar Guerra had failed to demonstrate that she could not

safely relocate within El Salvador. Escobar Guerra claimed that she had a problem

with a single person only, and “Pablo” was not shown to have the capacity to find

and attack her if she returned to a different part of El Salvador. The IJ also found

that even if Pablo was associated with a gang, there was no record “evidence

showing that any central leadership of the gang would be willing to expend resources

to locate a single person who is of romantic interest to a single gang member.” The

BIA expressly adopted this aspect of the IJ’s decision and reasoning.

Escobar Guerra does not address the internal relocation issue in her brief, so

appellate review is waived. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259–1260

(9th Cir. 1996). In any event, “[r]elocation is generally not unreasonable solely

because the country at large is subject to generalized violence.” Hussain, 985 F.3d Page 4 of 5

at 648-649. We find no evidence in the record that compels reversal of the IJ’s

factual finding that Escobar Guerra could avoid Pablo’s threat by living in a different

part of El Salvador. Cf. 8 U.S.C. § 1252(b)(4)(B) (standard of review).

3. Escobar Guerra’s failure to demonstrate the infeasibility of safe internal

relocation also constitutes substantial evidence in support of the BIA’s denial of

relief under withholding of removal. “The standard for withholding of removal is

more stringent than the well-founded fear standard governing asylum, and requires

objective evidence that it is more likely than not that the alien will be subject to

persecution upon deportation.” Robleto-Pastora v. Holder, 591 F.3d 1051, 1057 (9th

Cir. 2010).

4. To qualify for withholding of removal under CAT, an applicant must show

“that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Relief is available only if

the applicant shows that torture would be inflicted “by, or at the instigation of, or

with the consent or acquiescence of, a public official acting in an official capacity.”

Id. § 1208.18(a)(1). Relief under CAT may only be denied after the IJ, and then BIA,

consider “all evidence relevant to the possibility of future torture,” expressly

including “[e]vidence that the applicant could relocate to a part of the country of

removal where he or she is not likely to be tortured.” 8 C.F.R. § 1208.16(c)(3)(ii).

However, we have clarified that an applicant for relief under CAT does not bear the Page 5 of 5

burden of proving the impossibility of internal relocation. See Maldonado v. Lynch,

786 F.3d 1155, 1163 (9th Cir. 2015) (en banc).

Here, the IJ concluded, based on substantial evidence, that Escobar Guerra

failed to meet her burden to prove that she was more likely than not to be tortured if

deported to El Salvador. The IJ determined that Escobar Guerra could relocate

within El Salvador to avoid any threat of torture posed by Pablo or his associates.

As explained, Escobar Guerra does not challenge this finding in her brief, so the

issue is waived. The record does not compel a different conclusion.

The IJ also concluded that Escobar Guerra had failed to show that the

government of El Salvador instigated or acquiesced in any threat from Pablo. While

the record reflects that El Salvador has had some challenges in controlling violence

committed by gangs, we have repeatedly held that a “government does not acquiesce

in the torture of its citizens merely because it is aware of torture but powerless to

stop it.” B.R. v. Garland, 4 F.4th 783, 800 (9th Cir. 2021). Nothing in the record

compels a different conclusion, and “[w]e have reversed agency determinations that

future torture is not likely only when the agency failed to take into account

significant evidence establishing government complicity in the criminal activity.”

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

PETITION DENIED.