Ulloa-Martinez v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION MAY 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JANET ULLOA-MARTINEZ, No. 06-70123
Petitioner, Agency No. A097-475-053
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 6, 2010
Pasadena, California
Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.**
Petitioner Janet Ulloa-Martinez (“Ulloa”) petitions for review of a decision
of the Board of Immigration Appeals (“BIA”) affirming the denial of Ulloa’s
applications for asylum and for protection under the United Nations Convention
Against Torture (“CAT”). We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
We review the BIA’s determination that Ulloa was ineligible for asylum and
for CAT protection for substantial evidence. See Singh v. INS, 134 F.3d 962, 966
(9th Cir. 1998) (asylum); Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir.
2006) (CAT). “Under this standard, a petitioner contending that the BIA’s
findings are erroneous must establish that the evidence not only supports that
conclusion, but compels it.” Singh, 134 F.3d at 966 (quotation marks and brackets
omitted).
An asylum applicant must show either past “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). Ulloa
asserts that she has been persecuted, and faces a well-founded fear of future
persecution, because of a business dispute involving her mother. Although
membership in a family may constitute a particular social group in the context of
establishing eligibility for asylum or withholding of removal, Thomas v. Gonzales,
409 F.3d 1177, 1188-89 (9th Cir. 2005) (en banc), vacated and remanded on other
grounds, 547 U.S. 183 (2006), Ulloa has nonetheless failed to establish her
eligibility for asylum. Even assuming that Ulloa’s rape by two unknown men was
motivated in whole or in part by her family membership, “only when the alleged
persecution precludes relocation and exceeds the government’s ability or will to
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control can a claim of persecution based on membership in a particular family lead
to eligibility for asylum.” Thomas, 409 F.3d at 1189. Here, the record does not
compel the conclusion that the Honduran government could not, or would not,
prevent persecution of Ulloa based on her family membership. First, we have
explained that “[i]t is, of course, far more likely that persecution [on the basis of
family membership] will reach [the requisite] proportions [to establish an asylum
claim] when kinship ties are mingled with political religious, racial, or ethnic
affinities,” id., but Ulloa makes no such claim here: by Ulloa’s own testimony, her
alleged persecution on the basis of family membership was the result of a business
dispute. Moreover, the record does not compel the conclusion that the government
was unable or unwilling to control Ulloa’s persecutors or would be unable or
unwilling to do so in the future. The failure of the Honduran police to make
progress in investigating and prosecuting Ulloa’s attackers can more easily be
explained by the ponderous investigative hurdles they faced than by their
acquiescence in the attack.
Ulloa also seeks protection under the CAT. To obtain protection under the
CAT, an applicant must establish “that it is more likely than not that . . . she would
be tortured,” 8 C.F.R. § 208.16(c)(2), where “[t]orture is defined as any act by
which severe pain or suffering, whether physical or mental, is intentionally
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inflicted on a person for [certain] purposes . . . when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Id. § 208.18(a)(1). The BIA
determined that any acts that might have constituted torture were not inflicted by or
with the acquiescence of a person acting in an official capacity, and the record does
not compel a contrary conclusion.
PETITION DENIED.
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