Francis Yackelin Varela Martinez; Faviana Varela Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCIS YACKELIN VARELA
MARTINEZ; FAVIANA VARELA
MARTINEZ,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-106
Agency Nos.
A202-162-916
A202-162-917
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 2, 2023**
San Francisco, California
Before: W. FLETCHER, CALLAHAN, and LEE, Circuit Judges.
Francis Varela Martinez petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) dismissing her appeal from the denial of her
FILED
OCT 23 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).

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application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We review the BIA’s legal conclusions de
novo and its factual findings for substantial evidence. J.R. v. Barr, 975 F.3d 778,
781 (9th Cir. 2020). We deny the petition.
Varela Martinez argues that the BIA erred in finding the Honduran
government able and willing to prevent the domestic violence and abuse that
prompted her to leave Honduras. Her testimony and declaration indicate that when
she called the police to protect her from her ex-partner Cardona, the responding
officer told Cardona to stay away from her and remained with him while Varela
Martinez left the area. The threat of police involvement also stopped the attempted
assault by Wuester that immediately preceded her departure from Honduras. In
addition, Varela Martinez testified that restraining orders are available to victims of
domestic violence and that her “worst mistake” was not reporting Cardona’s abuse
earlier. We must conclude that substantial evidence supports the BIA’s finding
unless “‘any reasonable adjudicator would be compelled to conclude to the
contrary’ based on the evidence in the record.” J.R., 975 F.3d at 781–82 (quoting
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc)). In
light of the above, we cannot say that the record as a whole “compels the
conclusion” that the agency’s finding was erroneous. Davila v. Barr, 968 F.3d
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1136, 1141 (9th Cir. 2020) (quoting Cordon-Garcia v. I.N.S., 204 F.3d 985, 990
(9th Cir. 2000)).
The record also does not compel a finding that relocation within Honduras
would be unsafe or unreasonable. Varela Martinez argues that the BIA erred by
placing the burden on her to prove she could not safely relocate, but that burden is
appropriate when an asylum applicant has not shown past persecution. Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019). Varela Martinez testified
that her abusers would be able to find her “through acquaintances or friends” if she
returned to Honduras, but she also testified that she did not know how they could
find her unless she disclosed her new location to people whom her abusers knew.
She was able to avoid Cardona for five years and Wuester for several months
before leaving Honduras.
We deny the petition as to Varela Martinez’s CAT claim for similar reasons.
“Torture must be inflicted by, at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity.”
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1089 (9th Cir. 2020). Just as the record
does not compel the conclusion that the Honduran government has been unable or
unwilling to protect Varela Martinez, it also does not compel the conclusion that
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the Honduran government has been “willfully blind” to the domestic violence and
assaults she has faced. Id.
Finally, Varela Martinez argues that her case should be remanded because
Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), has changed the standard for
evaluating a particularized social group. Because the Government has not
contested on appeal Varela Martinez’s claim that she is a member of a cognizable
particularized social group, and because the BIA did not rely on the “complete
helplessness” standard for a government’s unwillingness or inability to prevent
violence that was called into question by A-B-, remand is unnecessary. See A-B-,
28 I. & N. Dec. at 309; see also Matter of A-B-, 27 I. & N. Dec. 316, 337 (A.G.
2018), overruled by A-B-, 28 I. & N. Dec. 307.
PETITION DENIED.
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