Rengifo-Sifuentes v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Gerardo Rengifo-Sifuentes, No. 21-679
Petitioner, Agency No. A099-311-401
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2023**
San Francisco, California
Before: BOGGS,*** M. SMITH, and OWENS, Circuit Judges.
Gerardo Rengifo-Sifuentes (“Sifuentes”), a native and citizen of Peru,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
dismissing his appeal of an immigration judge’s (“IJ”) decision denying his
application for protection 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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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We have jurisdiction under 8 U.S.C. § 1252(a)(1). As the parties are familiar
with the facts, we do not recount them here. We deny the petition.
“Where, as here, the Board adopts the IJ’s decision citing Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994) and provides its own review of the
evidence and law, we review the decisions of both the BIA and the IJ.” Udo v.
Garland, 32 F.4th 1198, 1202 (9th Cir. 2022). We review the agency’s legal
conclusions de novo and factual findings for substantial evidence. Lopez v.
Sessions, 901 F.3d 1071, 1074 (9th Cir. 2018). “Under [the substantial
evidence] standard, we must uphold the agency determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019).
To receive CAT protection, Sifuentes must establish that he is more likely
than not to experience torture if returned to Peru and that the torture will be
perpetrated by the government or with its acquiescence. See Aguilar-Ramos v.
Holder, 594 F.3d 701, 704 (9th Cir. 2010). “Torture is defined as ‘an extreme
form of cruel and inhuman treatment’ that is ‘specifically intended to inflict
severe physical or mental pain or suffering.’” Lopez, 901 F.3d at 1078 (quoting
8 C.F.R. § 1208.18(a)).
1. The record does not compel a finding that it is more likely than not
Sifuentes would be tortured if returned to Peru. Sifuentes fears that he will be
kidnapped and killed by criminals who think he has money because he has lived
in the United States. However, “[p]rotection under CAT is based entirely on an
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objective basis of fear; there is no subjective component to an applicant’s fear
of torture.” Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir. 2021) (internal
quotation marks, alteration, and citation omitted). As such, “speculative fear of
torture is not sufficient to satisfy the applicant’s burden.” Id.Substantial evidence supports the agency’s finding that Sifuentes’s fear of
torture did not rise above a speculative level. Although Sifuentes’s family
members have suffered random criminal acts, such as robbery, burglary, and
attempted extortion, neither he nor his family has ever been subjected to
physical violence, much less torture or threat of torture. The letter that his
brother-in-law received in Peru from an unknown “criminal group” in 2017
contained only a vague demand for a phone call, and the failure to make the call
was not pursued by the criminals. Indeed, his brother-in-law returned safely to
the United States after staying in Peru for a month.
The country reports that Sifuentes submitted show general social unrest,
crime, and corruption in Peru, but that does not suffice to establish his CAT
claim. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per
curiam) (“Petitioners’ generalized evidence of violence and crime in Mexico is
not particular to Petitioners and is insufficient to meet [the CAT] standard.”).
2. Nor does the record compel a finding that the Peruvian government
would acquiesce in any kidnapping or violence committed against Sifuentes.
Governmental acquiescence requires showing “that the public official, prior to
the activity constituting torture, have awareness of such activity and thereafter
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breach his or her legal responsibility to intervene to prevent such activity. Such
awareness requires a finding of either actual knowledge or willful blindness.”
8 C.F.R. § 1208.18(a)(7).
Here, Sifuentes admitted that the police agreed to investigate the only
criminal incident that his family brought to their attention. There is no evidence
that the police have breached their legal duty to intervene in the crime. See
Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that
the police were aware of a particular crime, but failed to bring the perpetrators
to justice, is not in itself sufficient to establish acquiescence in the crime.”).
Moreover, although documents in the record describe government
corruption and police ineffectiveness in Peru, the documents also indicate that
the government is working to combat terrorism, prosecute corruption, and
improve the police force. Evidence that a government is taking measures to
combat crime and violence, even if not successfully, supports a finding that the
government is not willfully blind. See id. at 1035.
Accordingly, substantial evidence supports the agency’s determination
that Sifuentes did not establish the elements of his CAT claim.
PETITION DENIED.
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