Opinion
23-1131
05-17-2024
EDGAR ALEXANDER LEMUS DE LEON, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted May 15, 2024 [**]
On Petition for Review of an Order of the Department of Homeland Security Agency No. A246-243-534
Before: GRABER, DESAI, and DE ALBA, Circuit Judges.
MEMORANDUM [*]
Edgar Alexander Lemus de Leon ("Lemus"), a native and citizen of Guatemala, petitions for review of the immigration judge's ("IJ") determination that he lacks a reasonable fear of persecution or torture in Guatemala. Lemus previously entered and was removed from the United States. He reentered the United States two months later, and the Department of Homeland Security sought to remove him again, but Lemus expressed a fear of returning to Guatemala. He asserted that he feared persecution on account of his status as a small business owner because, several times over the phone and in person, gang members threatened to kill him if he did not close his store and pay them money. Lemus reported the threats to the police. Six days later, he followed up with the police, who informed him that their investigation was ongoing. Within one week of reporting the threats, Lemus left Guatemala. The asylum officer concluded that Lemus did not establish a reasonable fear of persecution or torture by or with the acquiescence of the Guatemalan government. The IJ affirmed the asylum officer's decision.
We review petitions for review of an IJ's negative reasonable fear determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th Cir. 2016). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. "The reasonable fear screening standard is the same standard required to establish a well-founded fear of persecution in the asylum context," Bartolome v. Sessions, 904 F.3d 803, 809 n.4 (9th Cir. 2018) (internal quotation marks omitted), which requires a showing that the petitioner fears persecution by individuals the government is unwilling or unable to control, see Hussain v. Rosen, 985 F.3d 634, 645-46 (9th Cir. 2021). Substantial evidence supports the conclusion that the Guatemalan government is not unwilling or unable to protect Lemus from persecution. The government's inability to quickly arrest the individuals who threatened Lemus does not establish its unwillingness or inability to control the perpetrators. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005) (holding that the petitioner failed to establish the government was unwilling or unable to protect him when they "took reports documenting [his] various complaints" and "investigated the complaints, but were ultimately unable to solve the crimes"). This is especially true when Lemus left Guatemala only one week after reporting the threats to police, even after police informed him that their investigation was ongoing. The record thus does not compel the conclusion that the government would be unwilling or unable to control the individuals who threatened and extorted Lemus.
2. With regard to the possibility of torture, Lemus did not assert that government officials were directly involved in the threats against him. Governmental acquiescence in torture requires that, before the activity constituting torture, officials "(1) have awareness of the activity (or consciously close their eyes to the fact it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it." Garcia- Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014). Here, the Guatemalan police appeared willing to assist Lemus by investigating his complaints, and their inability to solve the case within six days does not constitute torture or acquiescence in torture. See id. ("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."). The record thus does not compel the conclusion that there is a reasonable possibility Lemus would suffer torture by or with the acquiescence of the Guatemalan government.
The temporary stay of removal remains in place until the mandate issues. The motions for stay of removal are otherwise denied.
The petition is DENIED.
[*] 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).