FILED

NOT FOR PUBLICATION

FEB 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBA NOEMI TOBAR-DE ESTEBAN; No. 18-71020 et al., Agency Nos. A208-565-022 Petitioners, A208-565-023

A208-565-024

v. A208-565-025

MERRICK B. GARLAND, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 8, 2022** San Francisco, California

Before: WARDLAW, IKUTA, and BADE, Circuit Judges.

Alba Noemi Tobar-De Esteban seeks review of a decision of the Board of

Immigration Appeals (BIA) affirming the decision of an immigration judge (IJ)

denying her claims for asylum, withholding of removal, and relief under the

* 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). Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.

Because the BIA adopted and affirmed the decision of the IJ without opinion, we

review the decision of the IJ as if it were the BIA’s. Kwong v. Holder, 671 F.3d

872, 876 (9th Cir. 2011).

We uphold the agency’s denial of Tobar-De Esteban’s claim for asylum

under 8 U.S.C. § 1158(b). Substantial evidence supports the agency’s

determination that Tobar-De Esteban did not suffer past mistreatment rising to the

level of persecution. Under our precedent, the mistreatment she identified — that

three armed gang members confronted her minor son, demanded money, and

threatened to kill his family if he reported the encounter; that she received a note

demanding $300 (which she paid), and that her car was vandalized— does not

compel the conclusion that she suffered persecution. See, e.g., Lim v. INS, 224

F.3d 929, 932–33, 936 (9th Cir. 2000) (holding that a petitioner did not suffer

persecution when he appeared on an organization’s “death list” and received

multiple death threats); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995)

(holding that the record did not compel the conclusion that a petitioner suffered

past persecution when assailants threw rocks at his house, attempted to steal his

property, detained him at gunpoint, held him in a police station jail cell for four to

six hours, and beat him). Because Tobar-De Esteban did not testify that the gang

2 threatened or confronted her in any way after she paid the gang’s demand, she did

not flee “in the face of an immediate threat.” See Mendoza-Pablo v. Holder, 667

F.3d 1308, 1314 (9th Cir. 2012).

We reject Tobar-De Esteban’s contention that the IJ was required to attribute

the mistreatment of Tobar-De Esteban’s family members to her for purposes of her

claim of past persecution. “[A]lthough harm to a petitioner’s close relatives,

friends, or associates may contribute to a successful showing of past persecution,”

a petitioner must show that these events “were part of a pattern of persecution

closely tied to [the petitioner].” Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir.

2009) (citation omitted). The IJ’s determination that the incidents involving

Tobar-De Esteban’s family members were motivated by the gang’s established

modus operandi of extorting anyone who might be able to pay, without regard for

their connection to Tobar-De Esteban, was supported by substantial evidence.1

Substantial evidence also supports the IJ’s determination that Tobar-De

Esteban did not establish a well-founded fear of persecution because she failed to

1 Because the IJ based its determination that Tobar-De Esteban did not establish past persecution on the ground that her past mistreatment did not rise to the level of persecution, we do not address her arguments that her proposed social groups are legitimate, that she is a member of those groups, or that she was persecuted on account of an imputed political opinion, concerning her claim for asylum. 3 show that she would suffer persecution “on account of” her membership in any

protected group. See 8 U.S.C. § 1101(a)(42); Zetino v. Holder, 622 F.3d 1007,

1016 (9th Cir. 2010). Tobar-De Esteban testified that many of her neighbors also

received extortion demands, and the letters to her father and brother specified that

the gang was asking everyone in the neighborhood for money. A “desire to be free

from harassment by criminals motivated by theft or random violence by gang

members bears no nexus to a protected ground.” Zetino, 622 F.3d at 1016.

We reject Tobar-De Esteban’s argument that she demonstrated a change in

country conditions in El Salvador that increased her risk of persecution if she

returns. As the IJ explained, while country condition reports indicate that El

Salvador is particularly dangerous for women, Tobar-De Esteban has not

demonstrated that she would face anything other than financially motivated

criminal conduct. We also reject Tobar-De Esteban’s contention that the IJ

improperly made an adverse credibility determination regarding her testimony.

The IJ stated that he gave Tobar-De Esteban’s testimony full evidentiary weight,

and the decision reflects that he considered her claims accordingly.

We uphold the agency’s denial of Tobar-De Esteban’s claim for withholding

of removal under 8 U.S.C. § 1231(b)(3). Substantial evidence supports the IJ’s

determination that Tobar-De Esteban did not demonstrate that any protected

4 ground would be “a reason” for any mistreatment she might suffer in El Salvador.

See 8 U.S.C. § 1231(b)(3)(C); Barajas-Romero v. Lynch, 846 F.3d 351, 358 (9th

Cir. 2017). As explained above, the record supported the IJ’s determination that

the gang extorts the general population and does not target Tobar-De Esteban’s

proposed social groups.2

We uphold the agency’s denial of Tobar-De Esteban’s claim for relief under

the CAT. See 8 C.F.R. § 208.16(c)(2); Al-Saher v. INS, 268 F.3d 1143, 1146–47

(9th Cir. 2001) (as amended). The IJ’s determination that Tobar-De Esteban did

not establish past torture was supported by substantial evidence. See 8 C.F.R.

§ 208.16(c)(3)(i). “[T]orture is more severe than persecution,” Nuru v. Gonzales,

404 F.3d 1207, 1224 (9th Cir. 2005), and as explained above, substantial evidence

supported the IJ’s finding that Tobar-De Esteban did not suffer mistreatment rising

to the level of persecution. The IJ’s determination that Tobar-De Esteban did not

establish a likelihood of future torture “inflicted by or at the instigation of or with

the consent or acquiescence of a public official or other person acting in an official

capacity” was supported by substantial evidence. See 8 C.F.R. § 208.18(a)(1);

2 Because the IJ denied Tobar-De Esteban’s withholding of removal claim on the ground that she did not establish the requisite nexus between any mistreatment she might face and any protected ground, we do not address her arguments that her proposed social groups are legitimate or that she is a member of those groups concerning her claim for withholding of removal. 5 Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003). While the police took no

further actions after responding to Tobar-De Esteban’s call, Tobar-De Esteban

acknowledged that there was no evidence as to the identity of the persons who

vandalized her car, and she presented no evidence that the police were involved

with the gang. Therefore, the record supported the IJ’s determination that the

Salvadoran government would not be complicit in any future torture against Tobar-

De Esteban. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016)

(affirming denial of petitioner’s CAT claim because “Salvadoran law prohibits

extrajudicial killings and violence, and there is substantial evidence that the

government enforces those laws—albeit imperfectly—against both gang members

and rogue police officers”).

PETITION DENIED.

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