JOSE ESTEBAN-VICENTE, AKA Jose Esteban-Vincente v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ESTEBAN-VICENTE, AKA Jose
Esteban-Vincente,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72961
Agency No. A206-354-194
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 10, 2022**
Seattle, Washington
Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER,*** District Judge.
Jose Esteban-Vicente, a citizen and native of Guatemala, petitions for review
of the decision of the Board of Immigration Appeals (“BIA”) upholding the order
of the Immigration Judge (“IJ”) denying his applications for asylum, withholding
of removal, and protection under the Convention Against Torture (“Torture
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
*** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
FILED
NOV 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Convention”). We have jurisdiction under § 242 of the Immigration and
Nationality Act. See 8 U.S.C. § 1252. We review the agency’s legal conclusions
de novo and its factual findings for substantial evidence. Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). Under the substantial
evidence standard, “the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). We deny the petition.
1. In his opening brief in this court, Esteban-Vicente did not challenge the
BIA’s conclusion that his asylum application was untimely and that he had failed
to establish grounds for a late filing. Accordingly, Esteban-Vicente has forfeited
any challenge to the agency’s denial of his asylum application. See Lopez-Vasquez
v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013).
2. Substantial evidence supports the agency’s conclusion that Esteban-
Vicente was not eligible for withholding of removal because he failed to show that
he suffered past persecution or that it is more likely than not that he would face
future persecution on account of a protected ground. On the record in this case, the
agency reasonably concluded that the harms visited on Esteban-Vicente by
“Francisco” and Francisco’s fellow gang members were attributable to a purely
personal dispute over a woman in whom both men were interested, rather than to
Esteban-Vicente’s membership in any particular social group. Esteban-Vicente

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testified that his problems with Francisco started when Francisco became jealous
that the woman in question would talk to Esteban-Vicente more than she would to
him. When asked if Francisco wanted to harm him “for any other reason,”
Esteban-Vicente merely repeated that the harm was due to their mutual interest in
the same woman. In light of this testimony, the agency reasonably concluded that
the attacks on Esteban-Vicente, and any future harm he feared from Francisco and
his gang associates, was based on “personal retribution.” And because “‘[p]urely
personal retribution’ is not persecution ‘on account of’ a protected ground,” Garcia
v. Wilkinson, 988 F.3d 1136, 1144–45 (9th Cir. 2021) (alteration in original)
(citation omitted), the agency properly concluded that Esteban-Vicente had failed
to establish his eligibility for withholding of removal.1
3. Substantial evidence also supports the agency’s denial of relief under the
Torture Convention. To qualify for such relief, “an applicant bears the burden of
establishing that she [or he] will more likely than not be tortured with the consent
or acquiescence of a public official if removed to her [or his] native country.”
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). The IJ concluded
1 Substantial evidence also supports the BIA’s determination that Esteban-
Vicente’s proposed social group of “men who become involved with women of
known gang members in Guatemala” did not satisfy the requirements for a
cognizable particular social group, because Esteban-Vicente failed to establish that
this group is “socially distinct within the society in question.” Diaz-Torres v. Barr,
963 F.3d 976, 980 (9th Cir. 2020) (citation omitted).

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that Esteban-Vicente had failed to show that “any harm that he may suffer is with
the consent or acquiescence” of the Guatemalan government. The IJ also
concluded that, given the passage of time since the threats and abuse from
Francisco and his associates occurred in 2007, Esteban-Vicente’s “claim of
potential future harm” with such consent or acquiescence was “too speculative.”
The BIA affirmed this reasoning and result. The agency’s conclusion that Esteban-
Vicente had failed to demonstrate that it was more likely than not that he would be
tortured with the consent or acquiescence of the Guatemalan government is based
on a permissible reading of the evidence, and we cannot say that the record
compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); see also Andrade-
Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (“We have stated that a general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence.”).
The petition for review is DENIED.

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