FILED
NOT FOR PUBLICATION
FEB 15 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICENTA HERNANDEZ-PEREZ, No. 17-71755
Petitioner, Agency No. A202-086-518
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2022**
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Vicenta Hernandez Perez (“Hernandez Perez”) petitions for review of the
Board of Immigration Appeals’ (“BIA’s”) order dismissing her appeal of an
Immigration Judge’s (“IJ’s”) order denying Hernandez Perez’s applications for
*
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). Therefore, the appellant’s
motion to set argument is DENIED.
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and deny the petition.
Substantial evidence supports the BIA’s determination that Hernandez Perez
failed to establish persecution on account of a protected ground. Even assuming
without deciding, as the BIA did, that Hernandez Perez’s testimony was credible,1
substantial evidence supports the BIA’s determination that Hernandez Perez was
targeted solely “as a form of revenge because she declined [her alleged
persecutor’s] request to be in a relationship with him.” Because persecution on
account of a personal desire for revenge is not persecution on account of a
protected ground, see Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir. 2011),
Hernandez Perez’s claims for both asylum and withholding fail, see Singh v. Barr,
935 F.3d 822, 827 (9th Cir. 2019) (per curiam).2
Substantial evidence also supports the BIA’s determination that Hernandez
Perez was not more likely than not to be tortured “by, or at the instigation of, or
1
Because the BIA neither expressly adopted the IJ’s adverse credibility
determination nor conducted its own analysis of Hernandez Perez’s credibility, and
was not required to do either, we do not address Hernandez Perez’s challenge to
the adverse credibility determination. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th
Cir. 2019).
2
Because the BIA assumed without deciding that Hernandez Perez’s
particular social groups (“PSGs”) were cognizable, and did not expressly adopt the
IJ’s determinations, we do not address Hernandez Perez’s challenge to the PSG
inquiry. See Arrey, 916 F.3d at 1157.
2
with the consent or acquiescence of, a public official acting in an official capacity
or other person acting in an official capacity” if returned to Guatemala. 8 C.F.R.
§ 1208.18(a)(1); see also id. § 1208.16(c)(2). The BIA’s conclusion was supported
by Hernandez Perez’s testimony that “the police in her area only spoke Spanish,”
but [her alleged persecutor] and his accomplices spoke Mam, and the lack of
evidence that [her alleged persecutor] and his two accomplices used genuine (as
opposed to fake or stolen) police-affiliated equipment or attire. See Andrade-
Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“We have reversed agency
determinations that future torture is not likely only when the agency failed to take
into account significant evidence establishing government complicity in the
criminal activity.”).
Although the BIA erred in suggesting Hernandez Perez was required to
prove internal relocation was unreasonable, see Dawson v. Garland, 998 F.3d 876,
884 (9th Cir. 2021), the error was harmless because the BIA rejected Hernandez
Perez’s claim for CAT relief on the ground that she failed to establish that her
attackers were policemen. Moreover, the record provides substantial evidence that
it is not unreasonable for Hernandez Perez to internally relocate to escape likely
torture, given that all of the alleged attacks occurred in the Todos Santos area of
3
Guatemala and her alleged torturers were neither from the government nor
government-sponsored. See 8 C.F.R. § 1208.16(c)(3)(ii).
Hernandez Perez’s argument that the BIA failed to address the country
conditions evidence adequately is belied by the record, because the BIA expressly
considered such evidence and determined it did not establish Hernandez Perez’s
“individualized risk of torture if returned to Guatemala.” We also reject Hernandez
Perez’s arguments regarding errors made by the IJ, because we review the BIA’s
decision, and the BIA did not make the same errors.
PETITION DENIED.
4