Ana Guzman-Ajenel v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA GUZMAN-AJENEL, AKA Ana No. 18-73157
Elvira Guzman-Ajanel,
Agency No. A088-762-777
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 1, 2021**
Pasadena, California
Before: GOULD, OWENS, and VANDYKE, Circuit Judges.
Ana Guzman-Ajenel (Guzman) petitions for review of the Board of
Immigration Appeals’ (BIA) order dismissing her appeal of an Immigration Judge’s
(IJ) decision denying her application for withholding of removal and request for
*
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).
protection under the Convention Against Torture (CAT). We have jurisdiction under
8 U.S.C. § 1252. We deny the petition for review.
“Whether a group constitutes a ‘particular social group’ ... is a question of
law we review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).
The BIA’s factual findings are reviewed for substantial evidence. Rayamajhi v.
Whitaker, 912 F.3d 1241, 1243 (9th Cir. 2019). Under this deferential standard,
factual findings are treated as “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh
v. Lynch, 802 F.3d 972, 974 (9th Cir. 2015). Accordingly, in order to reverse the
BIA’s finding under substantial evidence review, “we must find that the evidence
not only supports that conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992).
1. Guzman’s withholding of removal claim fails because substantial evidence
supports the BIA’s conclusion that Guzman was unable to show she would be
persecuted because of her membership in a particular social group (PSG).
Specifically, Guzman contends that she will be persecuted as a member of two
proposed PSGs: (1) “Guatemalan family members of a United States resident”; and
(2) “Ms. Guzman’s father’s family members.”
The BIA concluded that Guzman failed to show her first proffered PSG was
socially distinct because the record did not “demonstrat[e] that Guatemalan society
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perceives her proposed group as a [PSG].” Where, as here, “the record is devoid of
any society specific evidence, ... which would establish that [Guzman’s first
proposed PSG] [is] perceived or recognized as a group by society in Guatemala,”
the record does not compel the conclusion that the BIA erred in determining that
“Guatemalan family members of a United States resident” is not a cognizable PSG.
Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020).
Regarding Guzman’s second proposed PSG—“Ms. Guzman’s father’s family
members”—the BIA agreed with the IJ that Guzman failed to demonstrate “that her
membership in the group was or will be ‘a reason’ for the harm.” See also
Lkhagvasuren v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (“The petitioner has the
burden to prove that a nexus exists between the persecution and a protected
ground.”). The fact that Guzman and her daughters have been harmed is not enough
to show a nexus—that is, that they were harmed because they were members of Ms.
Guzman’s father’s family—and the record lacks evidence that the threats and harm
against them were motivated by their kinship. See id. at 803 (“Where persecution
did not occur on account of a protected ground, … claims for … withholding of
removal necessarily fail.”). Instead, the record supports the conclusion that Guzman
“and her daughter were targeted for financial and illicit purposes, unrelated to
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[Guzman’s] family ties.”1
2. Substantial evidence supports the BIA’s conclusion that Guzman failed to
meet her burden of proof under CAT. To qualify for CAT protection, Guzman bears
the burden of proving “that ‘it is more likely than not that … she would be tortured
if removed to the proposed country of removal.’” Azanor v. Ashcroft, 364 F.3d 1013,
1018 (9th Cir. 2004) (alteration in original) (quoting 8 C.F.R. § 208.16(c)(2)). While
Guzman suffered harm in the past, she also lived unharmed in Guatemala for 18
months after her last incident and has not provided evidence that it is more likely
than not that she will be tortured if she returns to Guatemala. The general
atmosphere of violence in Guatemala and her general fear of gangs and crime is
insufficient to meet the standard for CAT protection. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010) (“Petitioners’ generalized evidence of violence
and crime in Mexico is not particular to Petitioners and is insufficient to meet this
standard [under CAT].”). Therefore, substantial evidence supports the BIA’s
conclusion that Guzman is not eligible for CAT relief.
The petition for review is DENIED.2
1
Given the lack of nexus, we need not address whether Guzman’s proposed PSG
made up of Ms. Guzman’s father’s family members is cognizable in this case. But
see Matter of L-E-A-, 27 I. & N. Dec. 581, 581, 584 (2019).
2
Because we deny the petition for review, we also deny as moot Guzman’s motion
for stay of removal (ECF No. 1).
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