NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA BEATRIZ CALDERON-ESPEJO, No. 15-73588
Petitioner, Agency No. A095-734-576
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2019**
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,*** District Judge.
Ana Beatriz Calderon-Espejo, a native and citizen of Peru, applied for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). She petitions for review of the Board of Immigration Appeals’
*
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).
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
(“BIA”) decision to affirm the Immigration Judge’s (“IJ”) denial of her
applications. We conclude that Calderon-Espejo is not a member of a particular
social group and that substantial evidence supports the BIA’s denial of CAT
protection. Accordingly, we deny her petition.
“Where, as here, the BIA agrees with and incorporates specific findings of
the IJ while adding its own reasoning, we review both decisions.” Bhattarai v.
Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We review de novo questions of law,
including whether a group constitutes a “particular social group.” Pirir-Boc v.
Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). We review denials of asylum,
withholding of removal, and CAT relief for substantial evidence. Ling Huang v.
Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).
Calderon-Espejo claimed that a man in Peru—who she now believes belongs
to the Shining Path guerrilla group—stalked, harassed, and threatened her to the
point that she fled Peru. The IJ found Calderon-Espejo credible but denied her
application because her proposed social group lacked sufficient particularity and
social distinction. The IJ characterized the group as “women who have been
harassed and threatened by men and whose complaints to police have failed to
result in protection.” The IJ further denied Calderon-Espejo’s application under
CAT because nothing in the record indicated that any government official
acquiesced in the man’s actions. The BIA affirmed.
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To establish eligibility for asylum or withholding of removal based on
membership in a particular social group, an applicant must “establish that the
group is (1) composed of members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within the society in
question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of
M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)). A particular social group
must have definable, clear boundaries and its characteristics must have commonly
accepted definitions. Id. at 1135. “Persecutory conduct aimed at a social group
cannot alone define the group, which must exist independently of the persecution.”
Matter of W–G–R–, 26 I. & N. Dec. 208, 215 (BIA 2014).
Calderon-Espejo’s proposed social group lacks particularity and, notably, is
defined by the claimed persecutory conduct, i.e., harassment and threats by men.
Because this group does not exist independently from the claimed persecution, we
affirm the BIA’s dismissal for her applications for asylum and withholding of
removal.
To qualify for CAT relief, Calderon-Espejo must show “it is more likely
than not” she would be tortured in Peru if removed. 8 C.F.R. § 1208.16(c)(2).
“Torture” is defined as “any act [of] severe pain or suffering . . . 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.” 8 C.F.R. § 1208.18(a)(1). Government
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acquiescence “requires only that public officials were aware of the torture but
‘remained willfully blind to it, or simply stood by because of their inability or
unwillingness to oppose it.’” Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir.
2008) (quoting Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1060 (9th Cir. 2006)).
“[G]eneral ineffectiveness on the government’s part to investigate and prevent
crime will not suffice to show acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d
829, 836 (9th Cir. 2016). The BIA confirmed the IJ’s finding that nothing in the
record indicated that Peruvian government officials acquiesced in the harassment,
stalking, and threats Calderon-Espejo endured. Substantial evidence supports this
finding and we affirm.
The petition for review is DENIED.
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