Pablo Calmo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2024
• Docket: 23-464
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SANTOS TOMASA PABLO CALMO; B No. 23-464 PC, Agency Nos. A208-311-888 Petitioners, A208-311-887 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 14, 2024** San Francisco, California

Before: GOULD, TALLMAN, and R. NELSON, Circuit Judges. Santos Tomasa Pablo Calmo (Pablo Calmo) is a native and citizen of

* 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). Guatemala. 1 She is ethnically Mam. She petitions for review of a Board of

Immigration Appeals’ (BIA) decision. The BIA dismissed Petitioner’s appeal from

an Immigration Judge’s (IJ) decision denying applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). We review

the agency’s legal conclusions de novo and its factual findings for substantial

evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). Under the latter

standard, 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). We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition.

1. For an asylum claim, an applicant must prove a causal nexus between a

“statutorily protected characteristic and either her past harm or her objectively

tenable fear of future harm.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016

(9th Cir. 2023). These statutorily protected characteristics are limited to “race,

religion, nationality, membership in a particular social group, [and] political

opinion.” 8 U.S.C. § 1158(b)(1)(B)(i). The record supports the agency’s decision

to deny asylum. The BIA concluded that Pablo Calmo (1) failed to show a causal

nexus that any harm or threat she suffered was because she is a Mam woman and

1 Pablo Calmo’s minor daughter seeks to be a derivative beneficiary of Pablo Calmo’s petition. This disposition refers only to Pablo Calmo herself, but its conclusions apply equally to Pablo Calmo’s daughter.

2 23-464 that (2) “women in Guatemala who lack male protection” was not a particular and

socially distinct group.2

A petitioner must provide evidence that her protected characteristic was “one

central reason” for either her past harm or feared future harm. See

§ 1158(b)(1)(B)(i). Pablo Calmo testified that she believed that the gangs pursued

her for money, not because of her ethnicity and gender. The violent incidents that

she testified to, such as threats of rape, threats to kidnap her daughter, being grabbed,

harassing phone calls, and gang demands. Pablo Calmo tries to sidestep this

testimony by using circumstantial evidence to claim that these gang members

targeted her for her Mam ethnicity. But merely claiming that gang members

commented on her appearance does not mean that they targeted her for her ethnicity.

Thus, the record supports the agency’s conclusion that there was no nexus.

Nor is her proposed social group “women in Guatemala who lack male

protection” either particular or socially distinct. To the contrary, a group that broad

is—by any understanding—“amorphous, overbroad, diffuse, or subjective.” Nguyen

v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020). Here, it would be near impossible to

determine what or who would qualify as “male protection.” Nor is such a group

“sufficiently separate or distinct” to qualify as a particular social group. Diaz-Torres

2 The BIA did not fully adopt the IJ’s conclusions. We only consider the grounds relied upon by the BIA’s conclusions. See Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).

3 23-464 v. Barr, 963 F.3d 976, 980 (9th Cir. 2020). Pablo Calmo’s attempt to turn “women

in Guatemala who lack male protection” into a particularized social group, thus, fails

for many of the same reasons that the petitioner failed when trying to turn

“Guatemalan families that lack an immediate family male protector” into such a

group in Rodriguez-Zuniga, 69 F.4th at 1016. Nothing in the record compels us to

reject the BIA’s asylum conclusions.

2. And because asylum is a lower standard than the withholding-of-removal

standard, failure to establish eligibility for asylum is necessarily failure to satisfy the

withholding standard. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

3. The record also supports the BIA’s conclusions as to the CAT claim. Pablo

Calmo bears the burden of showing that it was “more likely than not that . . . she

would be tortured if removed to” Guatemala. 8 C.F.R. § 1208.16(c)(2). The BIA

rejected her CAT claim because Pablo Calmo did not establish that she would be

tortured if returned to Guatemala and did not show that she would suffer harm either

inflicted by or with the consent or acquiescence of a public official. There is not

substantial evidence that a public official intended to torture her. She was never

detained by any official, and she did not claim that she was afraid to return to

Guatemala because of its officials. And she does not point to evidence that would

overcome the BIA’s conclusions such that we are “compelled to conclude,” contrary

to the BIA, that she would be “the subject of torture” if she were returned to

4 23-464 Guatemala. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019). And we have

already affirmed prior BIA determinations that the Guatemalan government is

working to combat violence against women. Garcia-Milian v. Holder, 755 F.3d

1026, 1035 (9th Cir. 2014). Pablo Calmo’s CAT claim thus fails.

PETITION DENIED.

5 23-464