Juliana Rodriguez-Mejia De Ca v. Attorney General United States ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-1835
_____________
JULIANA RODRIGUEZ-MEJIA DE CALO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
No. A206-308-225
Immigration Judge: John P. Ellington
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
December 16, 2022
Before: RESTREPO, McKEE, and SMITH, Circuit Judges
(Opinion filed: January 11, 2023)
_____________________
OPINION
______________________
McKEE, Circuit Judge:

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Juliana Rodriguez-Mejia De Calo (“Rodriguez-Mejia”) seeks review of the Board
of Immigration Appeals’ denial of her application for withholding of removal and relief
under the Convention Against Torture. An Immigration Judge denied Rodriguez-Mejia’s
petition because it found Rodriguez-Mejia did not testify credibly and did not meet her
burden of proof for withholding of removal and protection under the CAT. The BIA
presumed that Rodriguez-Mejia was credible but affirmed the IJ’s holding that
Rodriguez-Mejia did not meet her burden of proof for withholding of removal and
protection under the CAT. We will assume that Rodriguez-Mejia’s testimony was
credible because the BIA expressly declined to reach the IJ’s adverse credibility
determination.1 Despite Rodriguez-Mejia’s credible fear of returning to Guatemala, we
have no choice but to affirm the BIA’s decision and deny the petition for review because
of our deferential standard of review.2
I.
Rodriguez-Mejia is a citizen of Guatemala. For several years, gang members
repeatedly threatened Rodriguez-Mejia and her son, Oliver, because he refused to join
their gang. They told Oliver “[t]hat if he did not work with them, they would kill his
whole family.”3 Gang members also beat Oliver, fracturing his head and arm, and pushed
Rodriguez-Mejia to the ground. Because she was afraid to file a complaint, Rodriguez-
Mejia did not make any reports to the police.
1
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).
2
We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1).
3
AR 143.
2
Rodriguez-Mejia and Oliver attempted to escape the gangs by relocating to Santa
Lucia, a Guatemalan town six or seven hours from their home. Gang members found
them in Santa Lucia and tried to abduct Oliver while they were in a store. The police
were also in the store at the time and Rodriguez-Mejia asked the officers for help. The
police intervened and took Oliver to Rodriguez-Mejia’s sister-in-law’s house, but they
“didn’t do anything” to the gang members.4
In 2016, after the attempted abduction, Rodriguez-Mejia and Oliver moved to the
United States to escape the threats from gang members. Approximately ten months after
moving to the United States, gang members killed Rodriguez-Mejia’s cousin in
Guatemala because he would not disclose Rodriguez-Mejia’s and Oliver’s whereabouts.
II.
If the BIA “‘affirmed and partially reiterated’ the IJ’s determinations, we review
both decisions.”5 “If the BIA relied on only some of the grounds given for denying relief,
we review only those grounds.”6 “In reviewing decisions of the BIA, this Court applies a
deferential standard of review.”7 While we review legal determinations de novo,8 “factual
findings are subject to substantial-evidence review and may not be set aside ‘unless any
reasonable adjudicator would be compelled to conclude to the contrary.’”9
4
AR 147–48.
5
Blanco v. Att’y Gen., 967 F.3d 304, 310 (3d Cir. 2020) (quoting Sandie, 562 F.3d at
250).
6
Id.7
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
8
Blanco, 967 F.3d at 310.
9
Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 91 (3d Cir. 2021) (quoting 8 U.S.C. §
1252(b)(4)(B)).
3
To be entitled to withholding of removal, “an applicant must prove that it is more
likely than not that he or she will be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion upon removal to a particular
country.”10 Persecution, however, is not established by harm alone nor by a likelihood of
future harm. In addition, “the government must also be complicit to some degree in the
harm through either act or omission.”11 Thus, the applicant must establish that “the
government was ‘unable or unwilling to control’ the individual or group that committed
the harm.”12 The BIA’s determination as to whether an applicant has proven government
complicity is a finding of fact that is subject to substantial-evidence review.13
The BIA affirmed the IJ’s finding that Rodriguez-Mejia did not establish
persecution by gangs that the Guatemalan government was unable or unwilling to
control. The BIA explained that when gang members attempted to abduct Rodriguez-
Mejia’s son, “police intervened to protect her son, thus indicating that authorities were
both willing and able to protect her son.”14 Rodriguez-Mejia argues that the police’s
failure to arrest the gang members who tried to abduct her son, as well as country
conditions that indicate corruption within the police force, establishes that the BIA erred
in finding the police were willing and able to protect her son.
10
Id. at 86.
11
Id. at 86 & n.5.
12
Id. at 87 (quoting Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.
2007)).
13
Id. at 91.
14
AR 4.
4
Although the police failed to arrest the gang members, they successfully thwarted
Oliver’s abduction and were responsive to Rodriguez-Mejia’s request for assistance. We
understand Rodriguez-Mejia’s argument to the contrary, but this record simply does not
allow us to reverse the BIA’s conclusion that she did not establish the required
acquiescence or complicity. “[I]f a government is willing and able to afford some
protection to an individual against harms inflicted by private actors, then that government
is not sufficiently complicit in the private conduct for those acts to constitute persecution
for purposes of relief from removal.”15 Rodriguez-Mejia’s focus on general corruption in
the police force is not enough to allow us to ignore the BIA’s finding and conclude that
the police are unwilling to intervene in gang operations. Moreover, “a government’s
inability or unwillingness to control a violent group as a general matter does not
necessarily mean that the government cannot or will not protect the specific applicant.”16
Because substantial evidence supports the BIA’s conclusion that Rodriguez-Mejia did not
establish that the Guatemalan government would be complicit in the harm caused by
gang members, we must affirm the BIA’s denial of Rodriguez-Mejia’s application for
withholding of removal.
To succeed on a CAT claim, an applicant must establish government acquiescence
to the torture she fears.17 “Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have awareness of such activity and
15
Galeas, 998 F.3d at 90.
16
Id. at 89.
17
Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).
5
thereafter breach his or her legal responsibility to intervene to prevent such activity.”18
Determining whether an applicant has established acquiescence involves a two-prong
inquiry. The first prong involves a factual finding as to how public officials will likely act
in response to the harm the applicant fears.19 As previously discussed, the BIA found that
when Rodriguez-Mejia requested the assistance of the police, the officers intervened to
protect her son. Substantial evidence supports the BIA’s conclusion that the government
would not acquiesce to Rodriguez-Mejia’s torture. We must therefore affirm the BIA’s
denial of Rodriguez-Mejia’s application for protection under the CAT.
III.
Although we are sympathetic to the very real dangers posed by gangs in
Guatemala, for the above reasons, we must deny Rodriguez-Mejia’s petition for review.
18
8 C.F.R. § 1208.18(a)(7).
19
Myrie, 855 F.3d at 516.
6