Wendy Alberto Zepeda v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY JANETH ALBERTO ZEPEDA, No. 19-71625
Petitioner, Agency No. A215-675-412
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 3, 2020**
Seattle, Washington
Before: TASHIMA, BYBEE, and COLLINS, Circuit Judges.
Petitioner Wendy Alberto Zepeda, a native and citizen of El Salvador,
petitions for review of the decision of the Board of Immigration Appeals (BIA)
affirming the Immigration Judge’s (IJ) denial of her applications for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
*
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).
Because the parties are familiar with the facts, we will not recite them here. We
have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
“We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Ling Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (internal quotation marks omitted).
1. Substantial evidence supports the BIA’s conclusion that Alberto Zepeda did
not demonstrate that the harm she suffered rose to the level of past persecution.
Persecution is “an extreme concept that does not include every sort of treatment
our society regards as offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.
2003) (internal quotation marks omitted). When determining whether threats rise
to the level of persecution, the court looks “at all of the surrounding circumstances
to determine whether the threats are actually credible and rise to the level of
persecution.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).
Contrary to Alberto Zepeda’s argument, the IJ and BIA did not apply an erroneous
legal standard but considered all the circumstances surrounding the mistreatment
and threats Alberto Zepeda endured at the hands of her cousin and concluded that
such behavior did not rise to the level of persecution. Alberto Zepeda’s alternative
interpretation of the evidence does not compel a finding of past persecution.
2
Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005) (“Because reasonable
minds could differ as to whether the threats received by [petitioner] constituted
persecution, the record does not compel us to make a finding that the threats did
constitute persecution.” (internal quotation marks omitted)).
2. Substantial evidence also supports the finding that Alberto Zepeda failed to
carry her burden to show that the Salvadoran government is unable or unwilling to
protect her. Her subjective belief that her cousin will harm her does not compel a
finding that the authorities would be unable or unwilling to help her. See Ren v.
Holder, 648 F.3d 1079, 1091 (9th Cir. 2011) (noting that an IJ could “find an
applicant’s testimony credible, but nonetheless insufficient to meet his burden”).
Moreover, the record demonstrates that the IJ reviewed the 2017 U.S. Department
of State Country Report (2017 country report) and concluded that the Salvadoran
government has taken specific steps to combat discrimination against the lesbian,
gay, bisexual, transgender, and intersex (LGBTI) community. The court is “not in
a position to second-guess the IJ’s construction” of the 2017 country report. Sowe
v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008). Further, this court does not
consider the additional reports Alberto Zepeda filed with this court because they
are not part of the administrative record. Fisher v. INS, 79 F.3d 955, 963 (9th Cir.
3
1996) (en banc).1 In short, the evidence does not compel a finding that the
Salvadoran government is unable or unwilling to protect Alberto Zepeda.
3. Substantial evidence supports the conclusion that Alberto Zepeda failed to
demonstrate her eligibility for CAT relief. A petitioner is entitled to CAT relief if
he or she demonstrates “that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). Although ineligibility for asylum and withholding of removal
does not necessarily preclude eligibility for CAT relief, Alberto Zepeda’s claims
under CAT are based on the same experiences with her cousin that the IJ
determined did not rise to the level of persecution or demonstrate the government’s
unwillingness or inability to protect Alberto Zepeda from private actors. Thus,
denial of CAT relief was supported by substantial evidence.
PETITION DENIED.
1
To the extent Alberto Zepeda challenges the BIA’s apparent refusal to take
administrative notice of these reports––which she does not explicitly do in her
brief—that action is reviewed for abuse of discretion. Fisher, 79 F.3d at 963. The
BIA did not abuse its discretion in declining to consider the additional reports.
4