Velasquez-Gaspar v. Barr

• Citation: 976 F.3d 1062
• Decision Date: 30 September 2020
• Docket Number: No. 17-71964,17-71964
• Parties: Emilia VELASQUEZ-GASPAR, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

976 F.3d 1062

Emilia VELASQUEZ-GASPAR, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 17-71964

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 1, 2020 Pasadena, California

Filed September 30, 2020

OPINION

CALLAHAN, Circuit Judge:

Emilia Velasquez-Gaspar, a Guatemalan native and citizen, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal of an immigration judge's (IJ) denial of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.

I.

Velasquez-Gaspar unlawfully entered the United States near Naco, Arizona, in 2010. Later that year the U.S. Department of Homeland Security initiated removal proceedings against her, charging that she was present in the United States without being admitted or paroled. See 8 U.S.C. § 212(a)(6)(A)(i)(I). Velasquez-Gaspar conceded her removability but applied for asylum, withholding of removal, and CAT relief. As the basis for her applications, she claimed that, if deported, she would face persecution and torture at the hands of her abusive ex-boyfriend, Brian Alexander Gonzales.

Velasquez-Gaspar testified at her removal hearing that Gonzales had repeatedly beaten her and that, one night, he and his friends had raped her. She recounted that when she threatened to report Gonzales to the police, he stated that he would kill her if she did so. She added that the police would not have believed her in any event, considering that she was an indigenous woman, and that the police were susceptible to bribes. The Guatemalan government discriminated against indigenous people, she explained, and lacked laws addressing domestic violence.

Velasquez-Gaspar supplemented her testimony with several articles and U.S. Department of State human rights reports for Guatemala, which detailed the country's handling of domestic abuse, rape, and femicide. She also offered written statements from a former employer and neighbor, who were aware of her situation and had urged her to seek help from the police.

Fearing retaliation from Gonzales, Velasquez-Gaspar declined this advice.

The IJ denied Velasquez-Gaspar relief on several alternative grounds. She first found Velasquez-Gaspar incredible based on inconsistencies in her testimony. She next determined that Velasquez-Gaspar's proposed social group of "women unable to leave their relationships" was not cognizable. And finally, she found that Velasquez-Gaspar had not established the Guatemalan government's inability or unwillingness to protect her from Gonzales. Velasquez-Gaspar appealed to the BIA, and a divided panel dismissed her appeal. The panel assumed arguendo that she was credible and did not address her proposed social group. It agreed, however, with the IJ that Velasquez-Gaspar failed to establish that governmental authorities would not or could not have protected her. Velasquez-Gaspar timely petitioned for our review of that narrow question.

II.

"We review only the BIA's opinion, except to the extent that it expressly adopted portions of the IJ's decision." Rayamajhi v. Whitaker , 912 F.3d 1241, 1243 (9th Cir. 2019) (citation omitted). We review the agency's factual findings under the "extremely deferential" substantial-evidence standard, under which we treat such findings as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Farah v. Ashcroft , 348 F.3d 1153, 1156 (9th Cir. 2003) (quoting 8 U.S.C. § 1252(b)(4)(B) ).

III.

An alien seeking asylum must demonstrate that she is "unable or unwilling" to return to her home country "because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Bringas-Rodriguez , 850 F.3d 1051, 1062 (9th Cir. 2017) (quoting Navas v. INS , 217 F.3d 646, 654 (9th Cir. 2000) ). Proving past persecution can satisfy this burden, as it gives rise to a rebuttable presumption of future persecution. Id. But to qualify an alien for asylum, the persecution must have been "committed by the government" or, as relevant here, "by forces that the government was unable or unwilling to control." Id. ; see also Rahimzadeh v. Holder , 613 F.3d 916, 920 (9th Cir. 2010).

We conclude that substantial evidence supports the agency's determination that, had Velasquez-Gaspar reported her abuse,¹ the Guatemalan government could have protected her from Gonzales. The State Department reports show that Guatemala is working to curb violence against women. For example, Guatemalan law criminalizes rape and domestic abuse, and officials investigate and prosecute cases under those laws. Granted, the conviction rates are exceptionally low, and officers often face a lack of resources and training, but we do not limit our analysis to whether the government can "control the attackers"; we also look to whether it can "protect the attacked." Bringas-Rodriguez , 850 F.3d at 1066. On this point the reports convey that justices of the peace issued restraining orders and ordered police protection for abuse victims in an unspecified number of cases. In addition, Guatemala has established programs, offices, and shelters for female victims of physical and sexual assault. One such shelter operates in Quetzaltenango, where Velasquez-Gaspar lived. Thus, although the State Department reports make clear that Guatemala still has a long way to go in addressing domestic violence, the country's efforts, coupled with the pleas of Velasquez-Gaspar's acquaintances, suggest that she could have obtained help.² As a result, we cannot say that the record compels a finding contrary to the agency's.

Indeed, we denied an analogous petition in Castro-Perez v. Gonzales , 409 F.3d 1069 (9th Cir. 2005). There, the petitioner credibly testified that she did not report being raped because the police would not have protected her and because she feared violent reprisal from her father. Id. at 1072. Looking to the State Department report for Honduras, we acknowledged the country's widespread domestic violence "despite attempts to strengthen domestic abuse law." Id. We nonetheless held that a reasonable trier of fact would not be "compelled to find that the Honduran government must bear some responsibility" for the abuse. Id. In the end, the country-report evidence "did not conclusively show that the Honduran government would have ignored the report of rape." Bringas-Rodriguez , 850 F.3d at 1066 n.9 (discussing Castro-Perez ).

As in Castro-Perez , the evidence here falls short of compelling the conclusion that Guatemalan authorities would have been unable or unwilling to help Velasquez-Gaspar.³ See Lianhua Jiang v. Holder , 754 F.3d 733, 738 (9th Cir. 2014) ("[T]he petitioner must establish that the evidence not only supports that conclusion, but compels it." (quotation marks and citation omitted)). Accordingly, she has failed to demonstrate her eligibility for asylum. And because withholding of removal also turns on this factor, substantial evidence likewise supports the agency's denial of that claim. Castro-Perez , 409 F.3d at 1072. Finally, Velasquez-Gaspar waived any argument as to her CAT claim by failing to "specifically and distinctly" discuss the matter in her opening brief. See id. (quoting Arpin v. Santa Clara Valley Transp. Agency , 261 F.3d 912, 919 (9th Cir. 2001) ); Lopez-Vasquez v. Holder , 706 F.3d 1072, 1079–80 (9th Cir. 2013). Such an argument would have failed in any event, as she has not shown a likelihood of torture by or with the acquiescence of public officials. See Bromfield v. Mukasey , 543 F.3d 1071, 1079 (9th Cir. 2008). We therefore deny her petition.

PETITION DENIED.

VANDYKE, Circuit Judge, concurring:

I join Judge Callahan's opinion in full. Given the considerable deference this court owes to the BIA's weighing of the evidence, the evidence here certainly does not "compel[ ]" reversal. I.N.S. v. Elias-Zacarias , 502 U.S. 478, 481 n.1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ("To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it ...."); 8 U.S.C. § 1252(b)(4). Looking to the 2014 Country Report, the BIA identified Guatemalan progress in protecting domestic violence victims.¹ The BIA also weighed the uncontested relevant, but non-dispositive, fact that Petitioner never sought police assistance. Citing to and affirming the Immigration Judge's findings on both counts, the BIA reasonably concluded that Petitioner failed to carry her burden of proof.

Notwithstanding slower-than-preferred progress in the 2014 Country Report, the BIA's conclusion is clearly supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Elias-Zacarias , 502 U.S. at 481, 112 S.Ct. 812. The BIA and IJ properly weighed the mixed evidence within the Country Reports, and the court should not second-guess that appraisal unless the evidence compels it. Aden v. Holder , 589 F.3d 1040, 1046 (9th Cir. 2009) ("Our standard of review, though, does not enable us to substitute our judgment ... for the BIA's" when it comes to reasonably weighing the persuasiveness of administrative record evidence.). "We have repeatedly recognized that the IJ and the BIA are entitled to rely on country reports that contain mixed messages, ambiguities, or inconsistencies." Singh v. Holder , 753 F.3d 826, 831 (9th Cir. 2014) ("[S]low and uneven progress in prosecuting those responsible for past persecution is troubling. But it does not mean that the Board's decision is not supported by substantial evidence."). It is of course true, as the dissent notes, that "deference does not mean blindness." Li v. Ashcroft , 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc). But deference does mean deference, and Li ’s truism cannot empower this court to substitute its judgment for that of the BIA's. Deference only counts when judges...