Juan Dimas Martinez-Henriquez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN DIMAS MARTINEZ-HENRIQUEZ,
et al.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-674
Agency Nos.
A208-756-974
A206-801-238
A208-756-975
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2023**
San Francisco, California
Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT,***
Senior 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 Richard D. Bennett, United States Senior District
Judge for the District of Maryland, sitting by designation.
FILED
MAY 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Petitioners in this case, all natives and citizens of El Salvador,1 seek
review of a decision of the Board of Immigration Appeals (“BIA”) upholding the
denial of their application for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
Petitioners entered the United States in 2016,2 and filed a consolidated
application for asylum, withholding removal, and CAT protection in 2019. At a
hearing before an Immigration Judge (“IJ”), Petitioners testified that they had
entered the United States fleeing gang violence in El Salvador. According to their
testimony, five Mara 18 gang members attempted to extort Juan for $10,000, and
separately attempted to extort Jaqueline. Both refused, and the gang attempted to
kill Juan and kidnap his children. Jaqueline further claims that she was physically
and sexually abused by a former partner. The IJ denied all forms of relief, and the
BIA upheld the IJ’s decision.
“We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence,” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017)
(internal quotation omitted), and affirm “unless the evidence in the record
1 The lead petitioner is Juan Dimas Martinez-Hernandez (“Juan”). His
children, Henry Samuel Martinez-Perez (“Henry”), and Jacqueline Estefany
Martinez-Perez (“Jaqueline”), are derivative beneficiaries on his application.
Petitioners shall be referred to collectively unless noted otherwise.
2 Juan and Henry entered the United States together on March 27, 2016.
Jacqueline entered earlier on August 19, 2014, and filed her own application for
asylum. These applications were consolidated at a master calendar hearing on
April 4, 2017.

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3 22-674
compels a contrary conclusion,” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir.
2007). “Where the BIA issues its own decision but relies in part on the
immigration judge’s reasoning, we review both decisions.” Flores-Lopez v.
Holder, 685 F.3d 857, 861 (9th Cir. 2012).
Nexus. To qualify for asylum or withholding of removal, “[t]he applicant
must demonstrate a nexus between her past or feared harm and a protected
ground.” Garcia v. Wilkinson, 988 F.3d 1136, 1143 (9th Cir. 2021) (citing
Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017)). To sustain a
claim for asylum, the protected ground must be “at least one central reason” for
the alleged persecution. Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010)
(quoting 8 U.S.C. § 1158(b)(1)(B)(i)). Comparatively, withholding of removal
requires only that the protected ground be “a reason” for the persecution. Barajas-
Romero, 846 F.3d at 360. We review the BIA’s nexus determination for
substantial evidence. Zetino, 622 F.3d at 1016.
Even assuming that the harm Petitioners suffered in El Salvador amounts
to past persecution,3 the IJ determined, and the BIA affirmed, that this harm was
attributable to criminal activity unconnected to any protected ground. See id. (“An
3 The IJ also denied asylum and withholding of removal after finding that
the harm Petitioners suffered did not rise to the level of past persecution. As the
BIA reached its decision on the basis of the nexus and relocation issues, it
declined to address “the [IJ’s] past persecution determination, including the
validity and cognizability of the particular social groups.” Accordingly, we are
precluded from addressing those issues. See Hernandez-Cruz v. Holder, 651 F.3d
1094, 1110 (9th Cir. 2011) (“[W]e cannot deny a petition for review on a ground
that the BIA itself did not base its decision.”).

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alien’s desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground.”). The
evidence on the record does not compel a conclusion that the gang targeted
Petitioners for any reason other than a desire to obtain money through extortion,
or that the violence Jaqueline suffered at the hands of her former partner was on
account of any protected ground. Cf. Ayala v. Holder, 640 F.3d 1095, 1097–98
(9th Cir. 2011). Accordingly, substantial evidence supports the BIA’s finding that
Petitioners failed to establish a nexus between the alleged persecution and a
protected ground. This determination is fatal to their asylum and withholding
claims. See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir. 2016).
Internal Relocation. To qualify for asylum or withholding of removal
based on a reasonable fear of future persecution, the applicant must show that he
could not reasonably relocate within the country of removal. 8 C.F.R. §
1208.13(b)(3)(iii); 8 C.F.R. § 1208.16(b)(2); Hussain v. Rosen, 985 F.3d 634, 648
(9th Cir. 2021). In this case, the BIA adopted the IJ’s finding that the Petitioners
could relocate safely within El Salvador, as no harm has come to other family
members who reside elsewhere in the country. Although Petitioners challenge
this finding in their opening brief, they did not raise the issue before the BIA.
Accordingly, this issue is not properly exhausted, and we lack jurisdiction to
address it. Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020); Honcharov v. Barr,
924 F.3d 1293, 1296 n.2 (9th Cir. 2019).

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Convention Against Torture. To qualify for CAT protection, the
applicant must show that “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” Hamoui v. Ashcroft, 389
F.3d 821, 826 (9th Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)); Khup v. Ashcroft,
376 F.3d 898, 906–07 (9th Cir. 2004) (requiring 51% chance of torture). The
applicant must also show that he or she would be tortured “with the consent or
acquiescence of a public official.” Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183
(9th Cir. 2020); see 8 C.F.R. § 208.18(a)(1). Acquiescence may be established by
“awareness and willful blindness,” but requires more than “ineffectiveness on the
government’s part to investigate and prevent crime.” Xochihua-Jaimes, 962 F.3d
at 1184 (citations omitted).
Petitioners offer only “generalized evidence of violence and crime” at the
hands of criminal gangs. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir.
2010). Although they note that the Salvadoran government has struggled to
prevent gang violence, it is well established that a government’s failure to control
criminal gangs does not constitute consent or acquiescence in torture. See, e.g.,
Xochihua-Jaimes, 962 F.3d at 1184; Garcia-Milan v. Holder, 755 F.3d 1026,
1034 (9th Cir. 2014). As the record does not compel a contrary conclusion,
substantial evidence supports the BIA’s denial of CAT relief.
PETITION DENIED.

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