Josue Arana-Arana v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE EMANUEL ARANA-ARANA; et No. 19-72817
al.,
Agency Nos. A208-192-264
Petitioners, A208-308-973
A208-308-974
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2022**
Phoenix, Arizona
Before: HAWKINS, PAEZ, and WATFORD, Circuit Judges.
Josue Emanuel Arana-Arana, Reina Izabel Aguilar Ruano, and Yensy Izabel
Arana Aguilar (collectively, “Petitioners”), natives and citizens of Guatemala,
petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
*
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).
their appeal from the immigration judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the
agency’s legal conclusions de novo and factual findings for substantial evidence.
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). We
dismiss the petition in part and deny in part.
1. To prevail on their applications for asylum and withholding of removal,
Petitioners must establish that Guatemalan authorities were unable or unwilling to
control their persecutors. 8 U.S.C. § 1101(a)(42)(A); Velasquez-Gaspar v. Barr,
976 F.3d 1062, 1064–65 (9th Cir. 2020). The IJ found that Petitioners failed to
show that the Guatemalan government was unable or unwilling to protect them
from their persecutors. On appeal to the BIA, Petitioners did not challenge that
finding. Nonetheless, Petitioners challenge that finding in their petition for review.
Because Petitioners did not exhaust that issue before the BIA, we lack jurisdiction
to review it. 8 U.S.C. § 1252(d)(1); Iraheta-Martinez v. Garland, 12 F.4th 942,
948 (9th Cir. 2021). Accordingly, we dismiss the petition to the extent it seeks to
challenge that finding. And because Petitioners cannot establish this essential
element of their claims for asylum and withholding of removal, we deny the
petition as to those claims. Velasquez-Gaspar, 976 F.3d at 1065.
2. The BIA’s determination that Petitioners were not entitled to relief on
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their CAT claim is supported by substantial evidence. To be eligible for CAT
protection, Petitioners must establish “that [they] will more likely than not be
tortured with the consent or acquiescence of a public official if removed to
[Guatemala].” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020).
The government’s “general ineffectiveness” in investigating crime, id. at 1184(quoting Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016)), or
“inability to solve a crime” due to lack of evidence is generally insufficient to
show acquiescence, Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
Petitioners did not establish that a Guatemalan public official would
acquiesce in their torture. The record demonstrates that Guatemalan police
investigated the murder of Reina’s brother and the repeated extortion calls. The
police’s “inability to solve [either] crime” does not show acquiescence, given the
lack of evidence of who may have been responsible for the murder and extortion.
Id. Petitioners’ proffered evidence of the police’s “general ineffectiveness” in
investigating crime similarly falls short. Xochihua-Jaimes, 962 F.3d at 1184
(quotation omitted). Thus, the agency’s decision to deny Petitioners’ CAT claim
was supported by substantial evidence.
PETITION DISMISSED IN PART AND DENIED IN PART.
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