Pesca v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 21, 2025
• Docket: 23-3810
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 21 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DERLY PESCA; JOSE ALEXANDER No. 23-3810 DAZA VELANDIA; N.D.P, Agency Nos. A240-200-352 Petitioners, A220-486-565 A220-486-566 v.

PAMELA BONDI, Attorney General, MEMORANDUM*

Respondent.

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

Submitted July 14, 2025**

Before: HAWKINS, S.R. THOMAS, and McKEOWN, Circuit Judges.

Derly Pesca, and her family, natives and citizens of Colombia, petition pro

se for review of the Board of Immigration Appeals’ order dismissing their appeal

from an immigration judge’s decision denying their applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s

factual findings for substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238,

1241 (9th Cir. 2020). We deny the petition for review.

We do not disturb the agency’s determination that the petitioners failed to

show they suffered harm that rose to the level of persecution. See Mendez-

Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9th Cir. 2003) (threats standing alone

constitute past persecution in only a small category of cases, and only when the

threats are so menacing as to cause significant actual suffering or harm); see also

Flores Molina v. Garland, 37 F.4th 626, 633 n.2 (9th Cir. 2022) (court need not

resolve whether de novo or substantial evidence review applies, where result

would be the same under either standard). Here, although Pesca and her husband

experienced vandalism and received threatening notes, the relevant threatening

conduct was not so menacing or suggestive of imminent harm as to rise to the level

of persecution.

Substantial evidence supports the agency’s conclusion that Pesca and her

family failed to establish a reasonable possibility of future persecution. See

Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding a fear of future

persecution was not objectively reasonable where the possibility of future

persecution was “too speculative”). The individual that killed Pesca’s cousin was

prosecuted and sent to prison, and no harm has come to other family members who

2 23-3810 have remained in Colombia. Therefore, petitioners’ fear of future persecution is

not objectively reasonable, and thus, petitioners’ asylum claims fail.

Because petitioners failed to establish eligibility for asylum, they necessarily

failed to satisfy the more stringent standard for withholding of removal. See

Villegas Sanchez v. Garland, 990 F.3d 1173, 1183 (9th Cir. 2021).

Substantial evidence also supports the agency’s denial of CAT protection

because petitioners failed to show that any future torture would be “inflicted by or

at the instigation of or with the consent or acquiescence of a public official or other

person acting in an official capacity.” Barajas-Romero v. Lynch, 846 F.3d 351,

361 (9th Cir. 2017). Here, the Colombian government prosecuted the individuals

responsible for the death of Pesca’s cousin. Therefore, petitioners failed to show

the required government acquiescence, and thus, their CAT claims fail.

PETITION FOR REVIEW DENIED.

3 23-3810