FILED
NOT FOR PUBLICATION
NOV 28 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIREYDA SARCENO-FLORIAN, No. 16-72694
Petitioner, Agency No. A206 432 329
v. MEMORANDUM*
MATTHEW WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2018**
San Francisco, California
Before: GRABER and BENNETT, Circuit Judges, and KOBAYASHI,*** District
Judge.
Mireyda Sarceno-Florian, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Leslie E. Kobayashi, United States District Judge for the
District of Hawaii, sitting by designation.
from an immigration judge’s (“IJ”) order of removal and denial of her application
for asylum and withholding of removal. We have jurisdiction under 8 U.S.C.
§ 1252. We review the BIA’s legal determinations de novo and the factual
findings underlying the BIA’s determination for substantial evidence.
Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). We deny the petition
for review.
Substantial evidence supports the BIA’s holding that Sarceno-Florian’s past
experiences in Guatemala do not rise to the level of persecution because the
murders of her family members and the attempted kidnapping of her friend were
not part of a pattern of persecution closely tied to Sarceno-Florian. See Wakkary
v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009); Arriaga-Barrientos v. INS, 937
F.2d 411, 414 (9th Cir. 1991). Although the threats that Sarceno-Florian received
were serious, the record does not compel the conclusion that these threats inflicted
sufficient “suffering or harm” to support a finding of past persecution because, as
Sarceno-Florian testified, the agent of persecution had been imprisoned and neither
she nor her family had been harmed or threatened since he was imprisoned. See
Lim v. INS, 224 F.3d 929, 936-37 (9th Cir. 2000) (concluding that death threats,
without more, did not constitute past persecution where the petitioner was not
harmed or confronted and his family remained safe for years following the threats).
2
Substantial evidence supports the BIA’s determination that the Guatemalan
government is willing and able to control the agent of persecution based on his
arrest and subsequent imprisonment, and the BIA properly considered Sarceno-
Florian’s failure to report the threats as one factor in reaching that conclusion. See,
e.g., Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010) .
The BIA also properly concluded that Sarceno-Florian failed to establish an
“objectively reasonable fear of future persecution.” Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc). Sarceno-Florian testified
that the agent of persecution remains in prison and that she has no knowledge of
him directly or indirectly harming anyone since he was imprisoned.
Because Sarceno-Florian failed to establish eligibility for asylum, she
necessarily failed to meet the more stringent standard for withholding of removal.
Ming Dai v. Sessions, 884 F.3d 858, 874 (9th Cir. 2018).
Petition DENIED.
3