Ceja Cabadas vs. Garland – CourtListener.com

                             NOT FOR PUBLICATION                         FILED
UNITED STATES COURT OF APPEALS                        SEP 17 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCINDA CEJA CABADAS; NOEL                      No. 23-2318
JOSUE CISNEROS CEJA; DANNA                      Agency Nos.
PAOLA CISNEROS CEJA; SAUL                       A208-605-640
ADALBERTO CISNEROS CEJA,                        A208-605-641
A208-605-642
Petitioners,
A208-605-643
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2024**
San Francisco, California
Before: GOULD and BUMATAY, Circuit Judges, and COLLINS, District
Judge.***
*
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).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Lucinda Ceja Cabadas, a native and citizen of Mexico, seeks review of the
Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s
(“IJ”) order denying her applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”) for herself and her
children, who are derivatives of this petition. Because the BIA affirmed the IJ’s
decision by citing Matter of Burbano while adding its own commentary, we review
both decisions. Gonzalez-Castillo v. Garland, 

47 F.4e 971

, 976 (9th Cir. 2022).
We review the legal determinations de novo and the factual determinations for
substantial evidence. Parada v. Sessions, 

902 F.3d 901

, 908 (9th Cir. 2018);
Nasrallah v. Barr, 

590 VS 573

, 584 (2020). We have jurisdiction under 

8 USC

§ 1252

. We deny the petition.
1. The agency denied Ceja Cabadas’s applications for asylum and
withholding of removal, and substantial evidence from the record does not compel
a conclusion to the contrary. Ceja Cabadas proposed three particular social groups
(“PSGs”): (1) Mexican Women Who Have Actively Opposed the Recruitment of
Their Children; (2) Mexican Women Who Have Cooperated with Law
Enforcement Against Criminal Organizations/Gangs; and (3) Ceja Cabadas’s
Family Group Membership. The agency concluded that the proposed PSGs are
“amorphous, overbroad, and diffuse,” and we agree. Even if the first two groups
were cognizable, the IJ found that Ceja Cabadas did not present evidence
2                                  23-2318
suggesting that she had opposed the recruitment of her children into a gang or
cartel, or that any cartel members were aware that Ceja Cabadas had reported their
three threatening phone calls to the police. Substantial evidence in the record does
not compel a conclusion to the contrary. 

8 USC § 1252

(b)(4)(B). As such, Ceja
Cabadas cannot show that she belonged to either proposed PSG. See also Conde
Quevedo v. Barr, 

947 F.3d 1238

, 1243 (9th Cir. 2020); Delgado-Ortiz v. Holder,

600 F.3d 1148

, 1151 (9th Cir. 2010); cf. Henriquez-Rivas v. Holder, 

707 F.3d 1081

(9th Cir. 2013) (en banc). Moreover, Ceja Cabadas’s third proposed PSG, family
group membership, was not exhausted before the BIA. 

8 USC § 1252

(d)(1); see
Santos-Zacaria v. Garland, 

598 VS 411

, 417–19 (2023); see also Abebe v.
Mukasey, 

554 F.3d 1203

, 1208 (9th Cir. 2009). Similarly, to the extent that Ceja
Cabadas proposes a “victims of gang violence” group in her petition to this panel,
we cannot review this claim given that her application for asylum did not include
this PSG such that the agency never considered it. 

8 USC § 1252

(d)(1); see
Santos-Zacaria, 598 U.S. at 417–19.
Because the record does not compel the conclusion that Ceja Cabadas
belongs to a cognizable PSG, she cannot meet the nexus requirement to show that
the three unfulfilled threats she received from the Knights Templar were on
account of her membership to a PSG. In any case, neither “harassment by
criminals motivated by theft” nor “random violence by gang members” bear a
3                                  23-2318
nexus to a protected ground. See Zetino v. Holder, 

622 F.3d 1007

, 1015–16 (9th
Cir. 2010) (citation omitted).
The petition’s inability to meet the asylum standard necessarily means that
the petition cannot meet the withholding-of-removal standard. See Navas v.
INS,

217 F.3d 646

, 663 (9th Cir. 2000).
2. The agency did not err by denying Ceja Cabadas’s CAT claim. Under
the CAT, a petitioner has the burden of proving that it is more likely than not that
she would be tortured if removed to the proposed country of removal. 

8 USC-§

208.16

(c)(2). A petitioner must show that the torture would be “inflicted by or at
the instigation of or with the consent or acquiescence of a public official acting in
an official capacity or other person acting in an official capacity.” 

8 USC-§

208.18

(a)(1). “Acquiescence” requires awareness of the activity prior to its
occurrence and a breach of official legal responsibility to intervene to prevent the
activity. 

8 CFR § 1208.18

(a)(7). “No person will be deemed to have breached a
legal responsibility to intervene if such person is unable to intervene, or if the
person intervenes but is unable to prevent the activity that constitutes torture.” 

Proof of identity.

The record indicates that the agency contemplated the likelihood of torture
not only to Ceja Cabadas but also to her three children based on the agency’s
consideration of the content of the cartel’s threats. Substantial evidence does not
compel a contrary conclusion. While the record shows that Ceja Cabadas reported
4                                     23-2318
the cartel’s threats to Mexican law-enforcement officials, substantial evidence does
not compel the conclusion that any individuals acting in an official capacity would
instigate or acquiesce to the harm threatened by the cartel rising to the level of
torture. 

8 USC § 208.18

(a)(1); 

8 CFR § 1208.18

(a)(7); see B.R. v. Garland, 

26

F.4e 827

, 845 (9th Cir. 2022) (where “demoralizing ineffectiveness” to combat
cartel activity “(did) not prove that the Mexican government would acquiesce in
the torture of its citizens at the hands of cartels”); Andrade-Garcia v. Lynch, 

828

F.3d 829

, 836 (9th Cir. 2016) (“(A) general ineffectiveness on the government’s
part to investigate and prevent crime will not suffice to show acquiescence.”). The
agency properly concluded that Petitioners did not show that they are more likely
than not to be tortured upon removal.
PETITION DENIED.
5                                    23-2318