Nancy Aracely Gonzalez- Cubas v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY ARACELY GONZALEZ-
CUBAS,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-526
Agency No.
A212-976-695
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 4, 2024**
Phoenix, Arizona
Before: CLIFTON, BYBEE, and BADE, Circuit Judges.
Nancy Aracely Gonzalez-Cubas, a native and citizen of Honduras, petitions
for review of the Board of Immigration Appeals’ (BIA) decision affirming an
Immigration Judge’s (IJ) order denying her application for asylum, withholding of
* 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).
FILED
APR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
When, as here, the BIA adopted the IJ’s decision and cited to Matter of
Burbano, 20 I. & N. Dec 872 (B.I.A. 1994), but added its own analysis, we review
both decisions. Gonzaga-Ortega v. Holder, 736 F.3d 795, 800 (9th Cir. 2013).
We review questions of law de novo and factual findings for substantial evidence.
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). Under the substantial
evidence standard, “we may grant a petition only if the petitioner shows that the
evidence ‘compels the conclusion’ that the BIA’s decision was incorrect.” Sharma
v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (quoting Ming Xin He v. Holder,
749 F.3d 792, 795 (9th Cir. 2014)).
1. Substantial evidence supports the determination that Gonzalez-Cubas is not
eligible for asylum or withholding of removal. See 8 U.S.C. §§ 1101(a)(42)(A),
1158(b), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b), 1208.16(b). Gonzalez-Cubas
sought relief on the grounds that she “suffered past persecution at the hands of her
ex-boyfriend,” Oscar Romero, who abused her and attempted to sexually assault
her. The IJ found that Gonzalez-Cubas did not establish past persecution on
account of a protected ground, but held that even assuming she had established
those elements, she failed to make the necessary showing that the Honduran
government was the source of the harm. To qualify for asylum or withholding of

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removal, Gonzalez-Cubas was required to show that the harm was or would be
inflicted by either the Honduran government “or by forces that the government was
unable or unwilling to control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023
(9th Cir. 2010); see also Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir.
2020).
The record does not compel the conclusion that the Honduran government
was unable or unwilling to control Romero.1 Gonzalez-Cubas argues that
“Honduran police often view crimes of domestic violence as pure private matters
and ignore threats made against women.” She points to (1) a 2018 Honduras
Human Rights Report by the U.S. Department of State that observed issues with
corruption in Honduran security forces, and (2) a report submitted by “a Honduran
attorney with expertise in the area of women’s rights,” which stated that Honduran
society accepts violence against women and that existing laws prohibiting
domestic violence are ineffective. But Gonzalez-Cubas also testified that she
believed the Honduran police would investigate crimes committed against her, and
she acknowledged in her opening brief that “Honduras has enacted specific
legislation to address domestic violence.” And as the IJ noted, the record reflects
1 We reject the government’s argument that Gonzalez-Cubas waived
any challenge to the BIA’s determination that Honduras is willing and able to
control Romero. We also reject its argument that she waived any challenge to the
BIA’s conclusion that she does not face a particularized risk of torture if returned
to Honduras.

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that Honduras has made efforts to prevent sexual assault and domestic abuse in the
country.
Absent evidence that the Honduran government was unable or unwilling to
control Romero, the BIA’s decision denying asylum and withholding of removal
was supported by substantial evidence.2 See Velasquez-Gaspar, 976 F.3d at 1064
(concluding that substantial evidence supported the BIA’s determination that
Guatemala was willing and able to protect the petitioner because “Guatemala is
working to curb violence against women. . . . [It] criminalizes rape and domestic
abuse, and officials investigate and prosecute cases under those laws”). Gonzalez-
Cubas also points to an instance when her brother and sister were attacked. But as
with Romero, Gonzalez-Cubas has not shown that the Honduran government was
unable or unwilling to control the people who attacked her brother and sister.
2. Substantial evidence also supports the conclusion that Gonzalez-Cubas is not
entitled to CAT relief because she did not prove “it is more likely than not that
[s]he would be tortured by or with the consent or acquiescence of a public official
in the country of removal.” Park v. Garland, 72 F.4th 965, 980 (9th Cir. 2023).
As we have explained, there is no evidence that the Honduran government was
involved in the abuse Gonzalez-Cubas experienced, or that it acquiesced to the
2 Because this issue is dispositive of Gonzalez-Cubas’s asylum and
withholding of removal claims, we do not address the other arguments she raises
regarding those claims.

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abuse. And substantial evidence supports the conclusion that any risk of Gonzalez-
Cubas being tortured upon return to Honduras is entirely speculative and thus
insufficient to obtain relief. See id. (stating that a risk of torture cannot be
speculative).
PETITION DENIED.

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