Unreported / Non-Citable
Background
Lesly Yareli Mendoza Hurtado, a native and citizen of Guatemala, petitioned the Ninth Circuit to review a Board of Immigration Appeals decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. The Board had expressly adopted the immigration judge's decision under Matter of Burbano while also giving its own review of the evidence and the law, so the panel reviewed both decisions. It reviewed questions of law de novo and the agency's factual findings for substantial evidence. The court cited 8 U.S.C. § 1252 as the basis for its jurisdiction.
Her past-persecution claim rested on a childhood incident in which she saw a "hole" where a classmate's father had kept a kidnapped girl. The Guatemalan government arrested and convicted the kidnapper. The agency concluded that she had not shown the government was unable or unwilling to protect her, that she lacked a well-founded fear of future persecution, and that she was not entitled to relief under the Convention Against Torture. The disposition is marked not for publication, and the panel decided it without oral argument.
The Court’s Holding
The panel denied the petition. On asylum and withholding, it explained that an applicant alleging past persecution must show that the treatment amounted to persecution, that it was on account of a protected ground, and that the government committed it or was unable or unwilling to control it. Mendoza Hurtado did not challenge the agency's determination that she failed to establish the Guatemalan government was unable or unwilling to protect her. The court therefore treated any argument on that point as waived. Because that element was dispositive, it did not decide whether her proposed social group was cognizable or whether she belonged to it.
The court also held that substantial evidence did not compel reversing the finding that she lacked a well-founded fear of future persecution. She stayed in Guatemala for several months after the kidnapping incident without being harmed. Nothing indicated that the people she feared, the kidnapper and his wife, would harm her in the future, or that relocation within the country was not feasible.
On Convention Against Torture relief, the court found that she had not alleged past torture and had not established a well-founded fear of future harm. The country-conditions evidence did not show a particularized risk that she would be tortured if returned to Guatemala. The court also denied her motion for a stay of removal.
Key Takeaways
- An applicant who does not challenge the agency's finding that the government was not unable or unwilling to protect her waives that issue, and the waiver can be dispositive of asylum and withholding claims.
- The panel did not reach whether the proposed particular social group was cognizable, because the government-protection element resolved the asylum and withholding claims.
- Remaining in the home country for months after the triggering incident without harm, with no sign the feared individuals would act, supported the finding of no well-founded fear of future persecution.
- Convention Against Torture relief failed because there was no allegation of past torture and the country-conditions evidence showed no particularized risk to this petitioner.
- The memorandum is unpublished and is not precedent except as allowed by Ninth Circuit Rule 36-3.
Why It Matters
This non-precedential memorandum applies familiar rules rather than announcing new law. It shows how closely the Ninth Circuit confines review to the issues a petitioner actually raises: a petitioner who does not contest one required element of persecution cannot win on the others, however the social-group question might have come out. The government's prosecution of the kidnapper also underlines how much a conviction can weigh on the unable-or-unwilling element.
The decision also shows how deferential the substantial-evidence standard is on future fear and Convention Against Torture claims. Months of uneventful stay after the incident, and generalized country evidence without a risk specific to the applicant, did not compel a contrary result. Because the disposition is unpublished, it carries limited precedential weight and is mainly useful for illustrating how the panel applied existing authority.