Reyez-Cabrera v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2024
• Docket: 23-375
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GLENDY ANA REYEZ-CABRERA, No. 23-375 Agency No. Petitioner, A205-879-965 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 13, 2024** San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

Glendy Ana Reyez-Cabrera, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ dismissal of her appeal from an

immigration judge’s denial of her applications for asylum, withholding of removal,

* 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). and relief under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

We review factual findings for substantial evidence. Davila v. Barr, 968

F.3d 1136, 1141 (9th Cir. 2020). Under that standard, we must uphold the agency’s

findings unless the record compels a contrary conclusion. See id.; 8 U.S.C.

§ 1252(b)(4)(B).

1. To establish eligibility for asylum, a petitioner must show a likelihood

of “persecution or a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). To be eligible for withholding of removal, a petitioner must

make the same showing by a “clear probability.” Alvarez-Santos v. INS, 332 F.3d

1245, 1255 (9th Cir. 2003). One way to establish a likelihood of persecution is by

demonstrating past persecution, which gives rise to a rebuttable presumption of

future persecution. Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). But no

matter how severe it may be, mistreatment does not constitute persecution unless it

is “committed by the government, or by forces that the government was unable or

unwilling to control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.

2010).

Reyez-Cabrera alleged that she was subject to past persecution in the form

of abuse by her former partner, but the Board determined that the Guatemalan

2 23-375 government was not “unable or unwilling to control” him. The Guatemalan

government demonstrated its ability and willingness to assist Reyez-Cabrera when

it acted on the complaint she filed against her former partner. See Afriyie v. Holder,

613 F.3d 924, 931 (9th Cir. 2010) (“[W]hen an applicant attempts to report

persecution to the police or request protection from them, the authorities’ response

(or lack thereof) to such requests may provide powerful evidence with respect to

the government’s willingness or ability to protect the requestor.”), overruled on

other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en

banc). Although proceedings against Reyez-Cabrera’s former partner ultimately

stalled, the Board reasonably concluded that the lack of resolution resulted not

from the government’s unwillingness or inability to act but instead from Reyez-

Cabrera’s failure to appear in court when summoned or to otherwise follow up on

the complaint. Accordingly, substantial evidence supports the BIA’s denial of

Reyez-Cabrera’s claims for asylum and withholding of removal. See Velasquez-

Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020).

2. Reyez-Cabrera also argues that she qualifies for CAT relief. Although

Reyez-Cabrera presented a CAT claim to the immigration judge, she did not

address the claim in her brief before the Board, and the Board deemed it waived.

We therefore may not consider it. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion

of administrative remedies); see also Santos-Zacaria v. Garland, 598 U.S. 411,

3 23-375 417–19 (2023) (holding that section 1252(d)(1) sets out a non-jurisdictional claim-

processing rule).

The temporary stay of removal will remain in place until issuance of the

mandate, and the motion to stay removal (Dkt. No. 2) is otherwise denied.

PETITION DENIED.

4 23-375