Alba Tobar-De Esteban v. Merrick Garland

FILED
NOT FOR PUBLICATION
FEB 11 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBA NOEMI TOBAR-DE ESTEBAN; No. 18-71020
et al.,
Agency Nos. A208-565-022
Petitioners, A208-565-023
A208-565-024
v. A208-565-025
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2022**
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Alba Noemi Tobar-De Esteban seeks review of a decision of the Board of
Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ)
denying her claims for asylum, withholding of removal, and relief under the
*
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).
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
Because the BIA adopted and affirmed the decision of the IJ without opinion, we
review the decision of the IJ as if it were the BIA’s. Kwong v. Holder, 671 F.3d
872, 876 (9th Cir. 2011).
We uphold the agency’s denial of Tobar-De Esteban’s claim for asylum
under 8 U.S.C. § 1158(b). Substantial evidence supports the agency’s
determination that Tobar-De Esteban did not suffer past mistreatment rising to the
level of persecution. Under our precedent, the mistreatment she identified — that
three armed gang members confronted her minor son, demanded money, and
threatened to kill his family if he reported the encounter; that she received a note
demanding $300 (which she paid), and that her car was vandalized— does not
compel the conclusion that she suffered persecution. See, e.g., Lim v. INS, 224
F.3d 929, 932–33, 936 (9th Cir. 2000) (holding that a petitioner did not suffer
persecution when he appeared on an organization’s “death list” and received
multiple death threats); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995)
(holding that the record did not compel the conclusion that a petitioner suffered
past persecution when assailants threw rocks at his house, attempted to steal his
property, detained him at gunpoint, held him in a police station jail cell for four to
six hours, and beat him). Because Tobar-De Esteban did not testify that the gang
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threatened or confronted her in any way after she paid the gang’s demand, she did
not flee “in the face of an immediate threat.” See Mendoza-Pablo v. Holder, 667
F.3d 1308, 1314 (9th Cir. 2012).
We reject Tobar-De Esteban’s contention that the IJ was required to attribute
the mistreatment of Tobar-De Esteban’s family members to her for purposes of her
claim of past persecution. “[A]lthough harm to a petitioner’s close relatives,
friends, or associates may contribute to a successful showing of past persecution,”
a petitioner must show that these events “were part of a pattern of persecution
closely tied to [the petitioner].” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir.
2009) (citation omitted). The IJ’s determination that the incidents involving
Tobar-De Esteban’s family members were motivated by the gang’s established
modus operandi of extorting anyone who might be able to pay, without regard for
their connection to Tobar-De Esteban, was supported by substantial evidence.1
Substantial evidence also supports the IJ’s determination that Tobar-De
Esteban did not establish a well-founded fear of persecution because she failed to
1
Because the IJ based its determination that Tobar-De Esteban did not
establish past persecution on the ground that her past mistreatment did not rise to
the level of persecution, we do not address her arguments that her proposed social
groups are legitimate, that she is a member of those groups, or that she was
persecuted on account of an imputed political opinion, concerning her claim for
asylum.
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show that she would suffer persecution “on account of” her membership in any
protected group. See 8 U.S.C. § 1101(a)(42); Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010). Tobar-De Esteban testified that many of her neighbors also
received extortion demands, and the letters to her father and brother specified that
the gang was asking everyone in the neighborhood for money. A “desire to be free
from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground.” Zetino, 622 F.3d at 1016.
We reject Tobar-De Esteban’s argument that she demonstrated a change in
country conditions in El Salvador that increased her risk of persecution if she
returns. As the IJ explained, while country condition reports indicate that El
Salvador is particularly dangerous for women, Tobar-De Esteban has not
demonstrated that she would face anything other than financially motivated
criminal conduct. We also reject Tobar-De Esteban’s contention that the IJ
improperly made an adverse credibility determination regarding her testimony.
The IJ stated that he gave Tobar-De Esteban’s testimony full evidentiary weight,
and the decision reflects that he considered her claims accordingly.
We uphold the agency’s denial of Tobar-De Esteban’s claim for withholding
of removal under 8 U.S.C. § 1231(b)(3). Substantial evidence supports the IJ’s
determination that Tobar-De Esteban did not demonstrate that any protected
4
ground would be “a reason” for any mistreatment she might suffer in El Salvador.
See 8 U.S.C. § 1231(b)(3)(C); Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th
Cir. 2017). As explained above, the record supported the IJ’s determination that
the gang extorts the general population and does not target Tobar-De Esteban’s
proposed social groups.2
We uphold the agency’s denial of Tobar-De Esteban’s claim for relief under
the CAT. See 8 C.F.R. § 208.16(c)(2); Al-Saher v. INS, 268 F.3d 1143, 1146–47
(9th Cir. 2001) (as amended). The IJ’s determination that Tobar-De Esteban did
not establish past torture was supported by substantial evidence. See 8 C.F.R.
§ 208.16(c)(3)(i). “[T]orture is more severe than persecution,” Nuru v. Gonzales,
404 F.3d 1207, 1224 (9th Cir. 2005), and as explained above, substantial evidence
supported the IJ’s finding that Tobar-De Esteban did not suffer mistreatment rising
to the level of persecution. The IJ’s determination that Tobar-De Esteban did not
establish a likelihood of future torture “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” was supported by substantial evidence. See 8 C.F.R. § 208.18(a)(1);
2
Because the IJ denied Tobar-De Esteban’s withholding of removal claim
on the ground that she did not establish the requisite nexus between any
mistreatment she might face and any protected ground, we do not address her
arguments that her proposed social groups are legitimate or that she is a member of
those groups concerning her claim for withholding of removal.
5
Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). While the police took no
further actions after responding to Tobar-De Esteban’s call, Tobar-De Esteban
acknowledged that there was no evidence as to the identity of the persons who
vandalized her car, and she presented no evidence that the police were involved
with the gang. Therefore, the record supported the IJ’s determination that the
Salvadoran government would not be complicit in any future torture against Tobar-
De Esteban. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016)
(affirming denial of petitioner’s CAT claim because “Salvadoran law prohibits
extrajudicial killings and violence, and there is substantial evidence that the
government enforces those laws—albeit imperfectly—against both gang members
and rogue police officers”).
PETITION DENIED.
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