Anacleta Jeronimo-Sales v. Robert Wilkinson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANACLETA JERONIMO-SALES, ET AL, No. 18-73329
Petitioners, Agency Nos. A208-117-973, A208-
117-974, A208-117-975, A208-
v. 117-976
ROBERT M. WILKINSON, Acting
Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 8, 2021**
Pasadena, California
Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.
Anacleta Jeronimo-Sales and her three minor children petition for review of
an order of the Board of Immigration Appeals (BIA) affirming the immigration
judge’s (IJ) denial of asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Jeronimo-Sales and her two older children are
*
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).
natives and citizens of Guatemala; her third child is a native and citizen of Mexico.
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. We review agency denials of asylum, withholding of removal, and CAT
relief for substantial evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.
2017) (citation omitted). Under that standard, the court must “uphold the agency’s
determination unless compelled to conclude to the contrary.” Singh v. Whitaker, 914
F.3d 654, 658 (9th Cir. 2019) (internal quotation marks omitted). “The possibility
of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by substantial evidence.” Go
v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (citation omitted).
2. Substantial evidence supports the BIA’s denial of the claims for
asylum, withholding of removal, and humanitarian asylum. In order for Jeronimo-
Sales to succeed on those claims, she must demonstrate that a nexus exists between
her feared persecution and her membership in a particular social group. Reyes v.
Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (asylum and withholding of
removal); Belishta v. Ashcroft, 378 F.3d 1078, 1080 (9th Cir. 2004) (humanitarian
asylum). Here, Jeronimo-Sales identifies three protected grounds that allegedly
motivated the gang violence against her: (1) her membership in a class of people
who took concrete steps to resist gang recruitment, (2) her gender as a woman, and
(3) her family membership.
2
The record does not compel the conclusion that Jeronimo-Sales was targeted
by the Mara 18 gang because of her resistance to gang recruitment. Jeronimo-Sales
testified she encountered the Mara 18 on two instances: first in 2008 and again in
2013. According to Jeronimo-Sales, gang members initially approached her in 2008
because they spotted her boyfriend and her in a field, and after the couple refused to
join, the gang members “went another way.” Five years later, in 2013, they were
approached again, but Jeronimo-Sales did not recognize any gang members from the
earlier encounter. Given the discrete and seemingly random nature of the contacts
in this case, the record does not compel the conclusion that Jeronimo-Sales was
specifically targeted for gang violence because of her resistance to gang recruitment.
Because Jeronimo-Sales did not demonstrate a nexus between the threat of harm and
her resistance to gang recruitment, there is no need to reach her alternative argument
that the BIA erred in holding that “youths who take concrete steps to oppose gang
membership and authority” was not a cognizable particular social group in this case.
Nor does the record compel the conclusion that Jeronimo-Sales was targeted
because of her gender. On both occasions, the gang members approached both
Jeronimo-Sales and her boyfriend for recruitment. It is true that she, and not her
boyfriend, suffered a miscarriage after the 2013 encounter. But at the same time,
the record is unfortunately silent (in part because of Jeronimo-Sales’s own memory
loss and her boyfriend’s refusal to discuss the events) on the motivations behind the
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gang violence. Moreover, the recruitment efforts and threats did appear to be
directed at both her and her boyfriend, and on top of that, she testified that her
boyfriend was attacked by gang members separately after the couple moved to
Mexico. Thus, the record does not compel the conclusion that Jeronimo-Sales was
subject to persecution because of her gender.
Finally, the record does not compel the conclusion that Jeronimo-Sales was
targeted because of her family membership. The record shows that her two brothers
have been able to remain in Guatemala without being subjected to gang violence or
recruitment attempts, which undermines her assertion that the gang is specifically
targeting people with her family name. Jeronimo-Sales also does not explain the
connection between her uncle’s acts of violence and the two encounters she had with
entirely different gang members; even accepting that her uncle may have been
affiliated with the Mara 18, that does not compel the conclusion that her later
experiences were anything other than random, discrete acts of violence. For these
reasons, we deny the petition as to the claims for asylum, withholding of removal,
and humanitarian asylum.
3. Substantial evidence also supports the BIA’s denial of Jeronimo-
Sales’s claim for relief under the CAT. Jeronimo-Sales must establish that “it is
more likely than not” that she would be tortured if removed to Guatemala. Garcia-
Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. §
4208.16(c)(2)). And “the torture must be ‘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. (quotation omitted). It is not enough for law enforcement to be aware
of a crime; “there must be evidence that the police are unable or unwilling to oppose
the crime.” Id. at 1034.
Here, the evidence does not compel the conclusion that Jeronimo-Sales will
more likely than not be tortured if she goes back to Guatemala. The record shows
that her two brothers have been able to remain in Guatemala without being subjected
to gang violence. See Singh, 914 F.3d at 663. Nor does the record compel the
conclusion that the Mara 18 gang members acted with acquiescence from the
Guatemalan government. There is no indication that Jeronimo-Sales ever reported
either of the gang encounters to law enforcement in Guatemala. That is certainly not
dispositive, see Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017)
(en banc), but in this case, the record does not otherwise suggest that the police
would have been unable or unwilling to intervene had they known about the
incidents. Indeed, the fact that the gang members threatened Jeronimo-Sales against
going to the police undercuts the conclusion that the government would have been
unable or unwilling to control the Mara 18. Thus, we deny the petition as to the
claim for CAT protection.
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Finally, as part of the petition for review of the denial of CAT protection,
Jeronimo-Sales argues that the BIA erred in affirming the IJ’s choice to designate
Mexico, instead of Guatemala, as the primary country of removal for her youngest
child. But Jeronimo-Sales declined to designate any country of removal for either
herself or her children. And in those circumstances, the IJ properly considered the
youngest child’s citizenship in designating Mexico as the primary country of
removal. See Jama v. ICE, 543 U.S. 335, 341 (2005). Not only that, but the IJ did
designate Guatemala as the alternate country of removal, concluding that “the
alternate country of removal with the rest of the family to Guatemala would be what
would happen.”
DENIED.
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