Fatima Chinchilla-Duarte v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FATIMA CHINCHILLA-DUARTE, AKA No. 14-74032
Evelyn Yessenia Santos-Ortiz,
Agency No. A206-408-881
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2023**
Before: OWENS, LEE, and BUMATAY, Circuit Judges.
Fatima Chinchilla-Duarte, also known as Evelyn Yessenia Santos-Ortiz, is a
native and citizen of Guatemala. She petitions for review of the Board of
Immigration Appeals’ (BIA) decision denying her application for withholding of
removal and protection under the Convention Against Torture (CAT). We have
*
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).
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. Substantial evidence supports the BIA’s holding that Chinchilla-Duarte
failed to establish her entitlement to withholding of removal. The BIA found that
Chinchilla-Duarte did not establish that she has a well-founded fear of persecution
on account of a protected ground because her asserted particular social group—
“female victims of gang violence”—is not cognizable. See Villegas Sanchez v.
Garland, 990 F.3d 1173, 1181 (9th Cir. 2021) (“‘[T]he social group must exist
independently of the fact of persecution’ because ‘the persecutors’ perception is
not itself enough to make a group socially distinct.’” (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227, 236 n.11, 242 (BIA 2014)). Chinchilla-Duarte does not
challenge this determination, and the issue is thus waived. She therefore has not
shown that “any reasonable adjudicator would be compelled to conclude” that the
BIA erred in denying withholding for removal. 8 U.S.C. § 1252(b)(4)(B).
2. Substantial evidence supports the BIA’s holding that Chinchilla-Duarte
failed to establish her entitlement to CAT protections. The agency found that
Chinchilla-Duarte did not show that it was more likely than not that she would be
tortured with the consent or acquiescence of the Guatemalan government.
Chinchilla-Duarte reports an instance in which she was assaulted by a police
officer; however, her testimony was deemed not to be credible based on several
omissions, inconsistencies, and contradictions in her testimony. Substantial
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evidence supports the IJ’s determination, which cited material discrepancies in the
record about Chinchilla-Duarte’s background and claims. See Tamang v. Holder,
598 F.3d 1083, 1093–94 (9th Cir. 2010). Chinchilla-Duarte did not report the
assault, and so she was unable to corroborate her testimony. She also does not
claim that she was otherwise fearful of being tortured with the consent or
acquiescence of the Guatemalan government. She thus has not provided an
argument compelling a conclusion contrary to the agency’s denial of CAT
protections.
DENIED.
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