Tampi-Arcos v. Blanche

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2026
• Docket: 25-5565
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIRTHA MARIA TAMPI-ARCOS; No. 25-5565 CARLOS ALFREDO HUAYTALLA- Agency Nos. TAMPI; A. N. H. T., A249-034-976 A245-542-054 Petitioners, A249-034-977 v. MEMORANDUM* TODD BLANCHE, Acting Attorney General,

Respondent.

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

Submitted April 15, 2026** San Francisco, California

Before: RAWLINSON, R. NELSON, and BADE, Circuit Judges.

Mirtha Maria Tampi-Arcos, Carlos Alfredo Huaytalla-Tampi, and Mirtha’s

minor daughter (collectively, Petitioners) petition for review of the Board 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). Immigration Appeals’ (BIA) decision affirming the denial of their applications for

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). 1 We have jurisdiction under 8 U.S.C. § 1252(a). We deny the

petition.

When “the BIA conducts its own review of the evidence and law,” instead of

adopting the decision of the Immigration Judge (IJ), “our review is limited to the

BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra

v. Barr, 974 F.3d 909, 911 (9th Cir. 2020) (citation omitted). “We review factual

findings for substantial evidence and legal questions de novo.” Id.

1. Substantial evidence supports the agency’s decision to deny Petitioners’

applications for asylum and withholding of removal. Petitioners had the burden to

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

religion, nationality, membership in a particular social group, or political opinion.”

Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8 U.S.C.

§ 1101(a)(42)(A)). A “well-founded fear of [future] persecution” can be established

“by proving past persecution, or by demonstrating that [the applicant] has a

1 The lead respondent is adult female Mirtha Maria Tampi-Arcos (A249-034-976). Her minor daughter, A. N. H. T. (A249-034-977), is a derivative beneficiary on her mother’s application. Ms. Tampi-Arcos’s adult son, Carlos Alfredo Huaytalla- Tampi (A245-542-054), “filed a separate application for relief and protection based upon the same factual predicate.” references to Petitioner in the singular are to the lead respondent.

2 24-4580 subjectively genuine and objectively reasonable fear of future persecution.”

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

(cleaned up).

The BIA properly dismissed Petitioners’ appeal, because Petitioners failed to

establish that “the persecution was committed by the government, or by forces that

the government was unable or unwilling to control.” Id. (citation omitted). Ms.

Tampi-Arcos reported the threatening incident to Peruvian police and received a

“guarantee of life,” which Ms. Tampi-Arcos described as “like a protection order.”

Ms. Tampi-Arcos did not report the names or addresses of the threatening

individuals, nor was she able to provide the license plate numbers on the motorcycle.

The police told Tampi-Arcos the report had been filed but did not immediately begin

an investigation. Only six days later, Ms. Tampi-Arcos fled Peru with two of her

children.

This police response does not demonstrate an unwillingness or inability to

control the threatening actors, because Ms. Tampi-Arcos failed to provide sufficient

information identifying the perpetrators. See Doe v. Holder, 736 F.3d 871, 878 (9th

Cir. 2013) (recognizing that unwillingness is not established “where the asylum

applicant failed to provide the police with sufficiently specific information to permit

an investigation or an arrest”).

Evidence of country conditions does not disturb the agency’s determination,

3 24-4580 because the U.S. Department of State Human Rights Report on Peru for 2023 notes

that the Peruvian government has taken “steps to identify and punish officials who

may have committed human rights abuses” and describes investigations into other

instances of politically motivated violence. See Velasquez-Gaspar v. Barr, 976 F.3d

1062, 1064 (9th Cir. 2020) (holding there was an insufficient showing that the

government was unable or unwilling to control persecutory forces where the “State

Department reports show that [the government] is working to curb violence”).

2. Substantial evidence also supports the agency’s determination that

Petitioners are not eligible for CAT relief. Petitioners had the burden to demonstrate

“that it is more likely than not that” they “would be tortured if removed to the

proposed country of removal.” Andrade v. Garland, 94 F.4th 904, 914 (9th Cir.

2024) (internal quotation marks omitted) (quoting Gutierrez-Alm v. Garland, 62

F.4th 1186, 1200–01 (9th Cir. 2023)).

The agency correctly determined that Petitioners failed to show it is more

likely than not that they would be tortured if returned to Peru. Evidence of “past

torture is ordinarily the principal factor” for determining whether the Petitioners are

more likely than not to experience future torture. Edu v. Holder, 624 F.3d 1137,

1145 (9th Cir. 2010) (cleaned up). The alleged past persecution does not, on its own,

rise to the level of torture. See 8 C.F.R. § 1208.18(a)(2) (stating that “lesser forms

of cruel, inhuman or degrading treatment . . . do not amount to torture”); see also

4 24-4580 Ahmed v. Keisler, 504 F.3d 1183, 1200–01 (9th Cir. 2007).

The agency also correctly determined that there was no likelihood of future

torture, because two of Ms. Tampi-Arcos’s children remain in Peru unharmed, see

Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010) (“[A] petitioner’s fear of

future persecution ‘is weakened . . . when . . . family members’ living in the

petitioner’s home country are not harmed”), and the country reports regarding

instances of political violence in Peru “do not indicate any particularized risk of

torture” to Petitioners, Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021).

Additionally, Petitioners did not demonstrate that the Peruvian government

consented or acquiesced to the alleged torture. In response to Ms. Tampi-Arcos’s

police report, the Peruvian government issued a protection order and was unable to

investigate due to the lack of identifying information provided. This evidence does

not demonstrate that the Peruvian government was unable or unwilling to protect

against persecution, much less that it consents or acquiesces to torture. Rodriguez

Tornes v. Garland, 993 F.3d 743, 754 (9th Cir. 2021). The BIA properly determined

that Petitioners did not establish their eligibility for CAT relief.

PETITION DENIED.2

2 The motion for stay of removal (Dkt. No. 2) is denied.

5 24-4580