Unreported / Non-Citable
Background
Berta Alicia Ordonez-Cardona and her minor son, natives and citizens of Guatemala, petitioned for review of a Board of Immigration Appeals (BIA) decision dismissing their appeal from an immigration judge’s (IJ) order denying asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The BIA affirmed the IJ’s decision without opinion.
Ordonez-Cardona claimed she feared persecution in Guatemala based on her Mayan Mam ethnicity, stemming from confrontations with former neighbors who were upset about animals she kept on her property. She testified that the neighbors were also indigenous Mayan Mam. The IJ determined the dispute was a private matter unrelated to a protected ground and denied CAT relief due to lack of government involvement or acquiescence.
The Court’s Holding
The Ninth Circuit denied the petition for review. First, the court held that the BIA’s summary affirmance without opinion did not violate due process, citing binding precedent in Falcon Carriche v. Ashcroft.
Second, the court found substantial evidence supported the agency’s determination that Ordonez-Cardona failed to establish the required nexus between the feared harm and a protected ground for asylum and withholding of removal. Because the neighbors shared her ethnicity and the conflict arose from a private dispute over animals, the evidence did not compel a finding of persecution on account of membership in a particular social group. Third, the court upheld the denial of CAT relief, finding no evidence that the feared torture would be inflicted by or with the acquiescence of government officials, particularly given Ordonez-Cardona’s testimony that she did not fear the police and knew of no collusion between police and her neighbors.
Key Takeaways
- The BIA’s practice of affirming without opinion (streamlining) does not constitute a due process violation in the Ninth Circuit.
- To establish eligibility for asylum or withholding of removal, an applicant must demonstrate that a protected ground was ‘one central reason’ or ‘a reason,’ respectively, for the persecution; a private dispute with neighbors of the same ethnicity does not satisfy this nexus requirement.
- Substantial evidence review is highly deferential: the agency’s factual findings stand unless the evidence compels a contrary conclusion.
- CAT relief requires proof that torture would be inflicted by, at the instigation of, or with the consent or acquiescence of a public official; a petitioner’s own testimony negating government involvement is fatal to the claim.
- Derivative beneficiaries on an asylum application must independently establish eligibility for withholding of removal and CAT relief.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit’s deference to agency factual findings under the substantial evidence standard and its rejection of due process challenges to the BIA’s streamlining procedures. It illustrates the difficulty of establishing a nexus to a protected ground when the alleged persecutors share the applicant’s protected characteristic and the conflict appears personal rather than discriminatory.
The decision also underscores the stringent requirements for CAT relief, specifically the necessity of showing state action or acquiescence, which cannot be met when the applicant disavows any government involvement in the feared harm. The ruling is limited to the record and procedural posture before the court. It does not decide questions the opinion expressly left unresolved, and an unpublished Ninth Circuit memorandum is not precedential except as Ninth Circuit Rule 36-3 permits.