KLEDY CANO-VILLATORO V. ERIC HOLDER, JR., No. 09-71691 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 17 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KLEDY ELIZABETH CANOVILLATORO, No. 09-71691 Agency No. A076-854-094 Petitioner, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 9, 2013** San Francisco, California Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges. Kledy Elizabeth Cano-Villatoro appeals the Board of Immigration Appeals s ( BIA ) decision denying asylum, withholding of removal, and relief under the * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). United Nations Convention Against Torture ( CAT ). We have jurisdiction pursuant to 8 U.S.C. § 1252. The BIA s determination that Cano-Villatoro had not been persecuted for her family s membership in the Civil Patrol was supported by substantial evidence because Cano-Villatoro failed to demonstrate that the guerillas were aware of this membership and therefore the guerillas could not have persecuted her on that basis. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). Nor did Cano-Villatoro establish that she was persecuted on account of her work experience as a nurse s assistant, because such work experience does not constitute an immutable characteristic under the BIA s decision in Matter of Acosta, 19 I. & N. Dec. 211, 232 33 (B.I.A. 1985), overruled in part on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987), and thus persons with such work experience do not constitute a particular social group. Moreover, the record contains no evidence that the guerrillas sought to persecute Cano-Villatoro because she worked as a nurse s assistant. Rather, as the BIA noted, the record reflects that the guerillas were recruiting Cano-Villatoro s help. The agency s conclusion that Cano-Villatoro could not establish a wellfounded fear of future persecution from the guerillas due to significant changes in Guatemala also was supported by substantial evidence in the record, including 2 evidence that the guerillas and Guatemalan government had entered into peace accords in 1996, and the 2003 Country Report s indication that the guerillas were not responsible for continuing human rights violations. Cf. Molina-Estrada v. INS, 293 F.3d 1089, 1095 96 (9th Cir. 2002). For the same reasons, the BIA s denial of Cano-Villatoro s application for withholding of removal was supported by substantial evidence. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Substantial evidence also supports the BIA s conclusion that Cano-Villatoro is not more likely than not to suffer torture if returned to Guatemala. 8 C.F.R. § 1208.17(a). Finally, we reject Cano-Villatoro s argument that the BIA erred in applying 8 C.F.R. § 1240.26(i) to her retroactively. The regulation applied prospectively, because she was on notice that the grant of voluntary departure would terminate if she filed a petition for review. See Garfias-Rodriguez v. Holder, 702 F.3d 504, 525 27 (9th Cir. 2012) (en banc) ( Whenever the Attorney General decides not to permit voluntary departure, and thereby terminates a grant, it is a determination of the alien s eligibility for voluntary departure at that moment in time. ). PETITION DENIED. 3
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