Sainvilia Benjamin v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAINVILIA BENJAMIN, ET AL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General
Respondent.
No. 22-428
Agency No.
A209-939-224
A209-939-225
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2023**
Pasadena, California
Before: BYBEE and CHRISTEN, Circuit Judges, and FITZWATER,*** District
Judge.
FILED
JUN 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF 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 Sidney A. Fitzwater, Senior United States District
Judge for the Northern District of Texas, sitting by designation.

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Sainvilia Benjamin, a citizen of Haiti, petitions for review of the Board of
Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ)
decision denying her applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT).1 We have jurisdiction under 8
U.S.C. § 1252(a)(1), and we deny the petition.
We review the BIA’s legal conclusions de novo and its factual findings for
substantial evidence. Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021).
“Substantial evidence review means that the BIA's determinations will be upheld
‘if the decision is supported by reasonable, substantial, and probative evidence on
the record considered as a whole.’” Id. (quoting Zhao v. Mukasey, 540 F.3d 1027,
1029 (9th Cir. 2008)).
1. Substantial evidence supports the BIA’s decision that Benjamin failed
to establish eligibility for asylum and statutory withholding of removal. 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(C); see also Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1230 (9th Cir. 2016) (“A petitioner who fails to satisfy . . . asylum
necessarily fails to satisfy the more stringent standard for withholding of
removal.”). The BIA and IJ concluded that there was no nexus between the
1 Benjamin’s asylum application included her minor daughter as a derivative
beneficiary.
2

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potential harm and her proposed particular social group (PSG).2 Benjamin’s
proposed PSG was “Haitian landowners who suffered violence at the hands of
other family members who target them due to their status as landowners.” The
BIA upheld the IJ’s determination that Benjamin did not establish that she would
be persecuted because of her PSG instead of because her family members wanted
to obtain the land. See 8 C.F.R. §§ 1208.13(b), 1208.16(b).
The record supports the BIA’s conclusion. Benjamin’s own testimony
describes a personal family drama, not persecution because of a PSG. Benjamin
testified that Uncle Antoine never beat her. She also said that her uncle wanted to
kill her “because he has more children than my father had. . . so he thinks that
he–that I could inherit everything that belonged to my father,” and that he “does
not recognize [Benjamin] as being part of the family.” This “record does not
‘compel’ us to conclude that [Benjamin] has been the victim of past persecution or
faces a clear probability of future persecution.”
Gutierrez-Alm v. Garland, 62 F.4th 1186, 1199 (9th Cir. 2023).
2. The BIA’s denial of Benjamin’s CAT claim is also supported by
substantial evidence. 8 U.S.C. § 1229a(c)(4)(A). Benjamin argued that the Haitian
2 The IJ and BIA also found that Benjamin failed to establish membership in
her proposed social group. We do not address this contention because it is not
necessary to uphold the BIA’s decision.
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government would acquiesce to her torture because her uncle, who has ties to the
Haitian police, suffered no consequences for his attack on her father. However,
under our law acquiescence requires that the official be aware of the torture “prior
to the activity constituting torture” and then breach the legal duty to intervene.
Ornelas Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006) (citing 8 C.F.R.
§ 208.18(a)(7)). Further, “threats from private actors” and “the existence of
generalized violence” do not constitute torture. Duran-Rodriguez v. Barr, 918
F.3d 1025, 1029 (9th Cir. 2019); Santos-Ponce v. Wilkinson, 987 F.3d 886, 891
(9th Cir. 2021).
Benjamin’s contentions that the Haitian government is corrupt and that
police fail to protect citizens from violence do not rise to the level of torture.
Because Benjamin never reported her uncle’s deeds to Haitian authorities and has
not otherwise been targeted by government officials, substantial evidence supports
the BIA’s conclusion that it is not “more likely than not” she will be tortured with
government approval if removed to Haiti. Duran-Rodriguez, 918 F.3d at 1029.
Thus, Benjamin has not met her burden to demonstrate that Haitian officials would
acquiesce to her torture. See 8 C.F.R. § 208.16(c)(2).
PETITION DENIED.
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