Lidia Calmo-Mendoza v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIDIA CALMO-MENDOZA and V.C.-C., No. 17-71818
Petitioners, Agency No. A202-157-792 and
A202-157-793
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2019**
Seattle, Washington
Before: WATFORD, MILLER, Circuit Judges, and BENITEZ, *** District Judge.
Lidia Calmo-Mendoza and V.C.-C., natives and citizens of Guatemala,
petition for review of an order of the Board of Immigration Appeals (BIA)
upholding the conclusions of the immigration judge (IJ) that neither race nor
*
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).
***
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
membership in a particular social group were the reasons for past persecution, thus
disqualifying petitioners for asylum and withholding of removal. They also
petition for review of the BIA’s decision upholding the IJ’s conclusion that
petitioners are not entitled to relief under the Convention Against Torture. We
have jurisdiction under 8 U.S.C. §1252(a)(1), and we deny the petitions.
The BIA decision was supported by substantial evidence. We uphold the
BIA’s decision unless “any reasonable adjudicator would be compelled to
conclude to the contrary” based on evidence in the record. 8 U.S.C.
' 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).
To establish asylum eligibility, an applicant must show that she is unable or
unwilling to return to her country of nationality because 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); see also 8 U.S.C. ' 1158(b)(1)(A). For Calmo-Mendoza,
evidence that past persecution was on account of her indigenous race or
membership in her particular social group was equivocal at best. The BIA noted
that her persecutors were of her same race or made no mention of her race. The
BIA also noted that her persecutors were motivated by romantic interest in one
case and a criminal intent to extort money in the second case, neither of which is a
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protected basis for asylum. Because evidence of a persecutor’s motive is critical,
“to obtain judicial reversal of the Board’s determination, [s]he must show that the
evidence [s]he presented was so compelling that no reasonable factfinder could fail
to find the requisite fear of persecution.” Pedro-Mateo v. INS, 224 F.3d 1147,
1151 (9th Cir. 2000) (quoting Elias-Zacarias, 502 U.S. at 483-84). A reasonable
factfinder would not be compelled to find either that Calmo-Mendoza’s race or
particular social group was “one central reason” for the persecution (the nexus
standard for asylum) or that it was “a reason” for the persecution (the nexus
standard for withholding-of-removal). Barajas-Romero v. Lynch, 846 F.3d 351,
358, 360 (9th Cir. 2017).
In denying the Convention Against Torture claim, the BIA noted Calmo-
Mendoza did not report her persecution to the local police. The BIA also properly
considered her reasons for non-reporting along with the 2015 Department of State
Country Report. The BIA found that she had not demonstrated that the police
would acquiesce or be willfully blind to harm inflicted on her by the private
individuals whom she fears. The BIA concluded that Calmo-Mendoza did not fill
the evidentiary gap with significant contrary proof. While reasonable adjudicators
might come to different conclusions, the record does not compel a contrary result.
The evidence presented does not compel the conclusion that Calmo-Mendoza is
more likely than not to be tortured by or with the acquiescence of Guatemalan
3 17-71818
officials. See 8 C.F.R. § 208.18(a)(1); Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th
Cir. 2003).
PETITION DENIED.
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