Martinez-Velasquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 23-3894
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSANA YASMIN MARTINEZ- No. 23-3894 VELASQUEZ; J.T., Agency Nos. A220-203-593 Petitioners, A220-203-594 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 5, 2024** Pasadena, California

Before: GRABER, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Susana Yasmin Martinez-Velasquez and her minor child J.T. are natives and

* 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). citizens of El Salvador.1 Martinez-Velasquez seeks review of the Board of

Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”)

decision denying her applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). “We review factual

findings for substantial evidence and legal questions de novo.” Flores Molina v.

Garland, 37 F.4th 626, 632 (9th Cir. 2022) (citation omitted). In conducting our

review for substantial evidence, we “treat the BIA’s determinations as conclusive

unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Lawrence v. Holder, 717 F.3d 1036, 1038 (9th Cir. 2013) (citations and

internal quotation marks omitted). We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition.

1. Substantial evidence supports the BIA’s determination that Martinez-

Velasquez does not qualify for CAT protection. To qualify, “the applicant bears

the burden of establishing that ‘it is more likely than not that he or she would be

tortured if removed.’” Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir. 2020)

(quoting 8 C.F.R. § 1208.16(c)(2)). “Torture is an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman or

1 Martinez-Velasquez is the lead petitioner and J.T. is a derivative beneficiary of his mother’s asylum application. J.T. did not file separate applications for withholding of removal or CAT relief. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (stating that, unlike asylum, derivative relief is not available with respect to withholding of removal or CAT relief).

2 degrading treatment or punishment that do not amount to torture.” Al-Saher v.

INS, 268 F.3d 1143, 1147 (9th Cir. 2001) (quoting 8 C.F.R. § 208.18(a)(2)),

amended by 355 F.3d 1140 (9th Cir. 2004). In other words, “[t]orture is ‘more

severe than persecution.’” Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020)

(citation omitted).

Martinez-Velasquez’s sole alleged past harm arises from a gang member’s

death threat to her and her child when she refused to allow the gang to use her

small business for a “job” because she did not want to be an accomplice to criminal

activity. Martinez-Velasquez was not physically harmed and received no

additional threats. This single past incident does not rise to the “extreme form of

cruel and inhuman treatment.” Al-Saher, 268 F.3d at 1147. Nor does the record

compel the conclusion that, if removed, Petitioners likely would suffer torture in

the future. Martinez-Velasquez does not offer any evidence to establish a

particularized risk of harm to her, and generalized evidence of crime and violence

in El Salvador is insufficient. Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir.

2021). Nor does Martinez-Velasquez point to any evidence showing that the

Salvadoran government would acquiesce to her torture. See Andrade-Garcia v.

Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“[A] general ineffectiveness on the

government’s part to investigate and prevent crime will not suffice to show

acquiescence.”).

3 2. Substantial evidence also supports the BIA’s determination that

Martinez-Velasquez failed to meet her burden of establishing that the threat she

received occurred on account of her membership in her claimed particular social

group of “Salvadorian women opposing gang violence/dominance.” To be eligible

for asylum, a petitioner must show that an asserted protected ground was “one

central reason” for her persecution, 8 U.S.C. § 1158(b)(1)(B)(i), while a

withholding of removal claim requires that the protected ground was at least “a

reason” for persecution, 8 U.S.C. § 1231(b)(3)(C); see Barajas-Romero v. Lynch,

846 F.3d 351, 360 (9th Cir. 2017) (holding that withholding of removal has a “less

demanding” standard). Under either standard, substantial evidence supports the

BIA’s determination that Martinez-Velasquez was targeted because she owned a

restaurant that gang members sought to utilize for criminal activity and was

threatened because she refused their demands. See Rodriguez-Zuniga v. Garland,

69 F.4th 1012, 1019 (9th Cir. 2023) (upholding an agency finding that a

noncitizen’s persecutors were motivated only by money, and therefore not by any

protected ground).

3. Because Martinez-Velasquez failed to exhaust her administrative

remedies regarding challenges to (1) the IJ’s determination that her past harm did

not rise to the level of persecution, (2) the IJ’s determination that her fear of future

persecution was not objectively reasonable, and (3) the IJ’s determination that she

4 did not meet her burden to prove that the government was unwilling or unable to

protect her, she has forfeited our review of those issues. See Suate-Orellana v.

Garland, 101 F.4th 624, 629 (9th Cir. 2024) (noting that 8 U.S.C. § 1252(d)(1) is a

non-jurisdictional claim-processing rule but that principles of waiver and forfeiture

apply to a failure to exhaust an issue before the BIA (citing Santos-Zacaria v.

Garland, 598 U.S. 411, 419, 423 (2023))). Nor has she raised any challenge to

those issues on appeal. See Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir.

2022) (holding that issues not specifically raised and argued in a party’s opening

brief are forfeited).

PETITION DENIED.