FILED
NOT FOR PUBLICATION
FEB 21 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBA LORENA HERNANDEZ- No. 17-71982
AMAYA,
Agency No. A099-664-295
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 24, 2020**
Pasadena, California
Before: CLIFTON and LEE, Circuit Judges, and BLOCK,*** District Judge.
*
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 Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
Alba Lorena Hernandez-Amaya, a native and citizen of El Salvador,
petitions for review of the decision of the Board of Immigration Appeals
dismissing her appeal from a decision by the Immigration Judge denying her
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Hernandez-Amaya argues that she has been
and will be persecuted and tortured by the father of her child, Juan Carlos.
Substantial evidence supports the BIA’s conclusion that Hernandez-Amaya failed
to demonstrate either that the government was unwilling or unable to control
Carlos or that the government would be willfully blind to any torture committed
against her. Accordingly, we deny the petition for review.
“To qualify for asylum, an applicant must show that she is a ‘refugee,’
defined as one who ‘is unable or unwilling to return to [her home country] . . .
because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.’” Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting 8
U.S.C. § 1101(a)(42)(A)). The agents of persecution must be the government, a
quasi-official group, or persons or groups that the government is unwilling or
unable to control. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.
2000). “A failure to satisfy the . . . standard of proof required to establish eligibility
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for asylum . . . necessarily results in a failure to demonstrate eligibility for
withholding of deportation.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.
2000).
The BIA upheld the immigration judge’s decision to deny Hernandez-
Amaya’s claims for asylum and withholding of removal on the grounds that she
failed to establish “that the harm was or would be inflicted by the government or
by individuals whom the government is unwilling or unable to control.”
Hernandez-Amaya argues that this conclusion was in error. However, there is
substantial evidence in the record to support this determination.
First, Hernandez-Amaya never reported Carlos’s violence to the police, nor
did she establish a compelling reason for her failure to do so. In cases of
non-governmental persecution, “we consider whether an applicant reported the
incidents to police, because in such cases a report of this nature may show
governmental inability to control the actors.” Baballah v. Ashcroft, 367 F.3d 1067,
1078 (9th Cir. 2004). But, “an applicant . . . need not have reported that
persecution to the authorities if [s]he can convincingly establish that doing so
would have been futile or have subjected h[er] to further abuse.” Ornelas-Chavez
v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Hernandez-Amaya never
reported Carlos’s violence to the police, nor did she convincingly establish that
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reporting him would have been futile or result in further abuse. Moreover, while
Hernandez-Amaya did not report Carlos, his family did. When this occurred, the
police arrested and held Carlos for multiple days, releasing him only after
Hernandez-Amaya refused to give a declaration. This incident suggests that
reporting Carlos would not have been futile, and that the Salvadoran government
was willing and able to control him.
Second, the Salvadoran government has previously sentenced Carlos to
“about 15 years” on murder charges. While petitioner states that Carlos has since
been released, the government held him in prison for a substantial period of time.
This is demonstrative of the government’s willingness and ability to control
Carlos. Thus, substantial evidence supports the BIA's conclusion that
Hernandez-Amaya did not meet her burden to establish that persecution was or
would be inflicted by individuals whom the government is unwilling or unable to
control. Therefore, the BIA did not err in denying her applications for asylum and
withholding of removal.
Additionally, the BIA did not err in denying Hernandez-Amaya’s
application for protection under CAT. “A petitioner seeking CAT relief must show
that it is more likely than not that [s]he will be tortured upon removal, and that the
torture will be inflicted at the instigation of, or with the consent or acquiescence of,
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the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).
Hernandez-Amaya has not demonstrated that she would be tortured either by a
government actor or with the tacit consent of the Salvadoran government. Instead,
the fact that Carlos has been arrested twice, and imprisoned once on a fifteen-year
sentence, indicates that the government is unlikely to turn a blind eye to any
potential torture of Hernandez-Amaya. Thus, substantial evidence also supports the
BIA’s determination that Hernandez-Amaya is not eligible for protection under
CAT.
PETITION DENIED.
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