Opinion
20-72266
11-07-2022
REYNA MARIBEL BARRERA LARREYNAGA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted October 7, 2022 Seattle, Washington
Submission Vacated October 13, 2022
Resubmitted November 3, 2022
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-693-155
Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit Judges.
MEMORANDUM
Reyna Maribel Barrera Larreynaga ("Petitioner"), a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals ("BIA"). Petitioner entered the United States without inspection in April 2014. She was served with a notice to appear in May 2014. Petitioner conceded removability and applied for asylum, withholding of removal, and relief under the Convention against Torture ("CAT"). The Immigration Judge ("IJ") found that the harm she suffered for her political opinions did not rise to the level of persecution. For her claimed social group, Salvadoran women who are in domestic relationships they are unable to leave, the IJ found that she was not a member of that group and, even if she were, there was no state action. Finally, the IJ found that Petitioner did not establish it was more likely than not she would be tortured upon return to El Salvador, or that the torture would be done with the government's consent or acquiescence. Therefore, the IJ denied the application and ordered Petitioner removed.
On appeal, the BIA found that Petitioner had not demonstrated the Salvadoran government was unable or unwilling to protect her from her abusive partner. It also found that the harm suffered due to her political opinions did not rise to the level of persecution. Finally, it found that there was no evidence a public official would consent or acquiesce to Petitioner's torture at the hands of her domestic partner.
We have jurisdiction under 8 U.S.C. § 1252. We review the BIA's factual findings for substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). The BIA's legal determinations are reviewed de novo. Guan v. Barr, 925 F.3d 1022, 1031 (9th Cir. 2019). We deny the petition.
1. To establish past persecution, a noncitizen must show that the persecution was committed by the government, or by forces that the government was unable or unwilling to control. Navas v. I.N.S., 217 F.3d 646, 655-56 (9th Cir. 2000). Substantial evidence supports the BIA's determination that Petitioner failed to show that the Salvadoran government was unwilling or unable to control her abusive domestic partner. Petitioner fails to offer sufficient evidence to support her claim that the police would not or could not have protected her had she reported the abuse. She relies almost exclusively on the State Department's El Salvador Human Rights Report to argue that the Salvadoran government has been unable to curtail rape and domestic violence. The only evidence relating to her abuse in the record suggests the possibility that the police might have been willing and able to protect Petitioner, as Petitioner's aunt told her to report the abuse to the police. Therefore, substantial evidence supports the BIA's conclusion.
2. Persecution is "an extreme concept," characterized by "the infliction of suffering or harm . . . in a way regarded as offensive." Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (alterations in original) (internal quotation marks omitted) (quoting Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc)). While death threats alone can constitute persecution, Kaur v. Wilkinson, 986 F.3d 1216, 1227 (9th Cir. 2021), they rarely do, Hussain v. Rosen, 985 F.3d 634, 646-47 (9th Cir. 2021). When analyzing threats, we ask "whether the group making the threat has the will or the ability to carry it out." Aden v. Wilkinson, 989 F.3d 1073, 1083 (9th Cir. 2021) (internal quotation marks omitted) (quoting Kaiser v. Ashcroft, 390 F.3d 653, 658-59 (9th Cir. 2014)).
In this case, substantial evidence supports the BIA's conclusion that a political party's threats made against Petitioner did not rise to the level of persecution. She was never physically harmed in any of the incidents. The party supporters distributed the threatening notes to many opposition-party supporters in Petitioner's neighborhood, thus suggesting that the party members did not intend to follow through on the threats. Petitioner did not hold any leadership role in the opposition party that would make the party supporters likely to seek Petitioner out upon her return to El Salvador. Therefore, substantial evidence supports the BIA's conclusion that the threats did not rise to the level of persecution.
3. To qualify for CAT protection, a noncitizen must show that he or she would be tortured by, at the instigation of, or with the consent or acquiescence of a public official. Sharma v. Garland, 9 F.4th 1052, 1067 (9th Cir. 2021). The government must have had awareness of such torture and breached its legal responsibility to intervene and protect against it. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006).
In this case, substantial evidence supports the BIA's determination that the torture her partner inflicted on Petitioner was not done with the consent or acquiescence of a public official. Petitioner never made any government official aware of the torture. Nor can governmental ineffectiveness in protection, standing alone, be considered willful blindness. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) ("[A] government does not 'acquiesce' to torture where the government actively, albeit not entirely successfully, combats the illegal activities ...." (internal quotation marks omitted)). Therefore, substantial evidence supports the BIA's determination.
PETITION DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.