Valenzuela Alcazar v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2025
• Docket: 23-4404
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAOLA VALENZUELA ALCAZAR, No. 23-4404 Agency No. Petitioner, A240-251-592 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 7, 2024** Submission Withdrawn November 15, 2024 Resubmitted January 8, 2025 Phoenix, Arizona

Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.

Paola Valenzuela Alcazar (“Petitioner”) petitions for review of a Board of

Immigration Appeals’ (“BIA”) decision dismissing her appeal from an

* 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 Judge’s (“IJ”) decision denying asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). “We review the BIA’s

legal determinations de novo” and its “factual determinations for substantial

evidence.” Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). As the

parties are familiar with the facts, we do not recount them here. We deny the

petition.

1. As to asylum and withholding, the BIA properly determined that, even if

Petitioner’s proposed particular social groups (“PSG”) are cognizable, Petitioner

did not establish a nexus between any PSG and the harm she suffered. “For

asylum, ‘the protected characteristic must be “a central reason” for the past or

feared harm.’” Id. at 551 (citation omitted). “For withholding of removal, an

applicant must show only that a ‘protected ground is “a reason” for future

persecution.’” Id. (citation omitted). The BIA concluded that Petitioner failed to

meet either standard because she “did not establish that her uncle abused her

because of her gender, family membership, nationality or because she could not

leave an abusive relationship.”1

Petitioner first contends the BIA erred by failing to review the IJ’s nexus

determination de novo. However, the BIA properly applied the clear error

1 The BIA recognized that the standards differ and, contrary to Petitioner’s assertion, did not “conflate[] the different nexus standards for asylum and withholding of removal.”

2 23-4404 standard only in reviewing the IJ’s finding that Petitioner’s “uncle was not

motivated to harm her on account of her membership in the[] [PSGs].” See id. at

552 (explaining that “a persecutor’s motive” is an “underlying factual finding[]”

that the BIA reviews “for clear error”).

Petitioner next contends “[t]he BIA failed to provide a reasoned

explanation” for its conclusion. However, in support of its finding of no nexus, the

BIA cited (1) Petitioner’s failure to “identify evidence demonstrating that her uncle

was motivated to harm her on account of” any PSG; and (2) the presence of

evidence supporting its conclusion that Petitioner’s uncle targeted her “because he

had the opportunity and means to do so” and because he “was a violent

individual.” The BIA thus “consider[ed] the issues raised, and announce[d] its

decision in terms sufficient to enable a reviewing court to perceive that it has heard

and thought and not merely reacted.” Najmabadi v. Holder, 597 F.3d 983, 990

(9th Cir. 2010) (citation omitted).

The evidence does not “compel[] a conclusion contrary to the BIA’s.”

Umana Escobar, 69 F.4th at 551. Substantial evidence supports the conclusion

that Petitioner’s uncle is a violent abuser and a pedophile, and the record does not

compel the conclusion that Petitioner’s membership in any proposed PSG

motivated her uncle’s abuse.

Because Petitioner has not shown a nexus between a PSG and the abuse by

3 23-4404 her uncle, we do not reach Petitioner’s additional contentions regarding the

cognizability of her PSGs or her ability to avoid harm by relocating within Mexico.

See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016) (“The lack of a

nexus to a protected ground is dispositive of [a petitioner’s] asylum and

withholding of removal claims.”).

2. As to CAT protection, the BIA properly determined that Petitioner did not

establish government acquiescence in any torture. To qualify for CAT protection,

Petitioner must show she is more likely than not to be tortured by or “at the

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

person acting in an official capacity.” Garcia-Milian v. Holder, 730 F.3d 996,

1003 (9th Cir. 2013) (citation omitted). Here, the record shows police forwarded

to prosecutors a report of threats Petitioner’s uncle made to her. “[F]ail[ure] to

bring the perpetrators to justice[] is not in itself sufficient to establish acquiescence

in the crime.” Id. at 1004. Further, country conditions evidence indicates the

Mexican government is taking steps to address violence against women, including

sexual abuse and domestic violence. Thus, substantial evidence supports the BIA’s

denial of CAT protection.

PETITION DENIED. The temporary stay of removal remains in place

until the mandate issues. The motion for a stay of removal is otherwise denied.

4 23-4404