Rufina Gonzalez Cruz v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUFINA GONZALEZ CRUZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70767
Agency No. A202-017-960
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2021**
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and KOBAYASHI,***
District Judge.
FILED
MAY 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.

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Rufina Gonzalez Cruz, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (BIA) decision dismissing her appeal from
the Immigration Judge’s (IJ) order denying asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). We review questions of law
de novo and factual findings for substantial evidence. Brezilien v. Holder, 569
F.3d 403, 411 (9th Cir. 2009). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a), and we deny the petition.1
1. Substantial evidence supports the BIA’s determination that Gonzalez
Cruz did not suffer past harm rising to the level of persecution. In order to
establish past persecution, an applicant must show: “(1) an incident, or incidents,
that rise to the level of persecution; (2) that is ‘on account of’ one of the
statutorily-protected grounds; and (3) is committed by the government or forces the
government is either ‘unable or unwilling’ to control.” Navas v. INS, 217 F.3d
646, 655–56 (9th Cir. 2000) (footnote omitted). Gonzalez Cruz has not been
harmed by anyone on account of her faith since she converted to the Jehovah’s
Witness denomination many years ago, and the family members who threatened
1 Because the parties are familiar with the facts, we recite only those facts
necessary to decide the petition.
2

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Gonzalez Cruz live in the United States. The record does not compel the
conclusion that the 2015 drive-by shooting was related to petitioner’s conversion.
2. We also conclude substantial evidence supports the BIA’s
determination that Gonzalez Cruz could relocate and thus did not have an
objectively reasonable fear of future persecution. Gonzalez Cruz failed to appeal,
and therefore waived, any challenge to the IJ’s ruling that she can safely relocate to
another part of Mexico. Even if not waived, this determination was supported by
substantial evidence and defeats her claims for asylum and withholding. See
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019).
3. Finally, Gonzalez Cruz argues the BIA erred by denying her
application for CAT relief. The record does not compel a contrary conclusion.
Gonzalez Cruz has failed to show it is more likely than not she will be tortured “by
or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.” Garcia-Milian v. Holder, 755 F.3d
1026, 1033 (9th Cir. 2014) (citations omitted); 8 C.F.R. § 208.18(a)(1).
PETITION FOR REVIEW DENIED.
3

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