Pena-Alvarez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2024
• Docket: 24-458
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELIANA JASBLEIDY PENA-ALVAREZ, No. 24-458 Agency No. Petitioner, A240-146-722 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Department of Homeland Security

Submitted December 3, 2024** San Francisco, California

Before: BENNETT, BRESS, and FORREST, Circuit Judges.

Eliana Jasbleidy Pena-Alvarez, a native and citizen of Colombia, petitions for

review of an Immigration Judge’s (IJ) reinstatement of her prior final order of

removal. The IJ concurred with the negative reasonable fear determination made by

* 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). an asylum officer. We review an IJ’s negative reasonable fear determination for

substantial evidence and uphold that decision “unless, based on the evidence, ‘any

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

Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018) (quoting Andrade-

Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016)). When the IJ, as here, references

the asylum officer’s decision, we consider both decisions. Id. at 814 n.11. To avoid

reinstatement of a removal order, a petitioner must show a “reasonable fear of

persecution or torture,” which requires “establish[ing] a reasonable possibility that

he or she would be persecuted on account of his or her race, religion, nationality,

membership in a particular social group or political opinion, or a reasonable

possibility that he or she would be tortured in the country of removal.” 8 C.F.R.

§ 208.31(c). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. Substantial evidence supports the IJ’s conclusion that Pena-Alvarez did

not establish a reasonable fear of persecution so as to warrant withholding of

removal. The standard to establish a reasonable fear of persecution “is the same

standard required to establish a well-founded fear of persecution in the asylum

context.” Bartolome, 904 F.3d at 809 n.4 (internal quotations omitted). Therefore,

Pena-Alvarez must demonstrate that her “persecution was committed by the

government, or by forces that the government was unable or unwilling to control.”

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc)

2 24-458 (quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)). Pena-

Alvarez failed to make this showing.

First, the IJ found that Pena-Alvarez “failed to establish any past or future

harm . . . by a group that the government is unwilling or unable to control.” Pena-

Alvarez failed to challenge the IJ’s finding that the Colombian government was not

unable or unwilling to control the ELN. Thus, Pena-Alvarez waived her challenge

to this issue, which is dispositive of her reasonable fear of persecution claim. See

Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (issues not

raised in opening brief are waived). Regardless, on this issue the record would not

compel a different conclusion than the one the IJ reached.

Second, in its negative reasonable fear determination, the asylum officer

found that the ELN members who kidnapped Pena-Alvarez were motivated by

pecuniary gain and not on account of a protected ground. The IJ “adopt[ed] the

rationale of the asylum officer.” Substantial evidence supports the lack of nexus,

and the record does not compel a contrary conclusion. See Zetino v. Holder, 622

F.3d 1007, 1016 (9th Cir. 2010) (holding that a “desire to be free from harassment

by criminals motivated by theft or random violence by gang members bears no nexus

to a protected ground”).

2. Substantial evidence supports the IJ’s finding that Pena-Alvarez failed

to establish a reasonable possibility of torture by or with the acquiescence of a public

3 24-458 official. “To constitute torture, an act . . . must be undertaken ‘at the instigation of,

or with the consent or acquiescence of, a public official.’” Hernandez v. Garland,

52 F.4th 757, 769 (9th Cir. 2022) (quoting 8 C.F.R. § 1208.18(a)(1)).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.” Barajas-Romero

v. Lynch, 846 F.3d 351, 361 (9th Cir. 2017) (quoting 8 C.F.R. § 208.18(a)(7)).

Public officials never harmed Pena-Alvarez, and she stated that she does not

fear future harm from them. Moreover, Pena-Alvarez confirmed to the IJ that “the

government of Colombia has been battling the ELN for a number of years.”

Therefore, the record does not compel the conclusion that Pena-Alvarez established

a reasonable possibility that public officials would torture her or acquiesce to her

torture.

PETITION DENIED.1

1 Pena-Alvarez’s motion to stay removal, Dkt. 2, 8, is denied. The temporary stay of removal shall remain in place until the mandate issues.

4 24-458