NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA ROJAS-GALINDO,

Petitioner, 

v. 

ROBERT M. WILKINSON, Acting 

Attorney General,

Respondent.

No. 18-73150 

Agency No. A078-110-018 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 11, 2021**

Pasadena, California

Before: BOGGS,*** M. SMITH, and MURGUIA, Circuit Judges.

Dissent by Judge MURGUIA

Petitioner Martha Rojas-Galindo, a native and citizen of Colombia, petitions 

for review of the Board of Immigration Appeals’ (BIA) decision dismissing her 

* 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 Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

FEB 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

appeal from the Immigration Judge’s (IJ) decision denying her application for 

withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We deny the 

petition for review.

Where, as here, “the BIA conducts its own review of the evidence and law 

rather than adopting the IJ’s decision, our review is limited to the BIA’s decision, 

except to the extent that the IJ’s opinion is expressly adopted.” Singh v. Lynch, 802 

F.3d 972, 974 (9th Cir. 2015) (internal quotation marks and citation omitted). We 

review the BIA’s denial of withholding of removal for substantial evidence. DuranRodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). “Under this standard, we

must uphold the [BIA’s] determination unless the evidence compels a contrary 

conclusion.” Id. (citation omitted); see 8 U.S.C. § 1252(b)(4)(B).

To qualify for withholding of removal, Rojas-Galindo must establish a clear 

probability that she will be persecuted on account of a protected ground if removed 

to Colombia. 8 U.S.C. § 1231(b)(3)(A); Navas v. INS, 217 F.3d 646, 655 (9th Cir. 

2000). If past persecution is established, the requisite likelihood of future 

1 Rojas-Galindo also applied for protection under the Convention Against Torture 

(CAT), but she did not appeal the IJ’s denial of her CAT claim to the BIA. She does 

not challenge the BIA’s conclusion that she waived her CAT claim or its decision 

not to remand her action, thereby waiving those issues. See Rizk v. Holder, 629 F.3d 

1083, 1091 n.3 (9th Cir. 2011) (explaining that issues not raised in an opening brief 

are deemed waived) (citing Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 

1996)). Accordingly, our review is limited to the BIA’s determination that RojasGalindo is not eligible for withholding of removal.
3

persecution is presumed. See 8 C.F.R. § 1208.16(b)(1)(i); Navas, 217 F.3d at 663.

Absent past persecution, Rojas-Galindo must demonstrate a clear probability of 

future persecution. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010); 

Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir. 2009). To meet this burden, RojasGalindo must show that her fear is both subjectively and objectively reasonable. See 

Duran-Rodriguez, 918 F.3d at 1029; 8 C.F.R. § 1208.16(b)(2).

1. The BIA’s conclusion that the harm Rojas-Galindo suffered did not rise to the 

level of persecution is supported by substantial evidence. Rojas-Galindo testified 

that her husband was previously extorted and assaulted by members of the 

Revolutionary Armed Forces of Colombia (FARC). Over one year after her husband 

left Colombia, Rojas-Galindo testified that she received threatening phone calls and 

was, on one occasion, followed by FARC members while in her car—the FARC 

members brandished their weapons to “scare” Rojas-Galindo but did not attempt to 

follow her after she made a U-turn. She also testified that FARC members attempted, 

unsuccessfully, to kidnap her daughter from her school, and sent Rojas-Galindo a 

condolence letter alluding to the death of her daughter who was still alive.

Based on this testimony, Rojas-Galindo may have suffered the types of harm 

that we have found could cumulatively equate to persecution—death threats, a close 

encounter, and abuse of a close family member—but the severity and frequency of 

Rojas-Galindo’s experiences fall short of the past harms in those cases. See, e.g.,
4

Mashiri v. Ashcroft, 383 F.3d 1112, 1119–20 (9th Cir. 2004) (holding that a death 

threat left on the petitioner’s car coupled with evidence that her tires were slashed, 

her home was ransacked, and she was forced to run from a threatening mob was 

“strong evidence” of persecution); Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th 

Cir. 2002) (holding that a finding of persecution was compelled where the petitioner

received multiple death threats over a period of six years, was chased on multiple 

occasions by armed men, and the men frequently came to the petitioner’s home and 

work looking for him); Salazar-Paucar v. INS, 281 F.3d 1069, 1074–75 (9th Cir. 

2002) (concluding that the evidence compelled a finding of past persecution where 

petitioner received multiple death threats and his persecutors murdered his political 

allies and also beat his mother and father at petitioner’s home when the persecutors 

could not find petitioner there).

Importantly, the BIA recognized that Rojas-Galindo’s problems only began,

one year after her husband had left for the United States, when her husband felt he 

could no longer meet the extortionate demands of his FARC attackers. Therefore, 

the BIA correctly concluded that the harm to Rojas-Galindo’s husband did not carry 

the same weight as the harm to the petitioner’s parents in Salazar-Paucar, as the 

petitioner’s parents in Salazar-Paucar were attacked in conjunction with the 

assailants’ pursuit of the petitioner, but here, the persecution of Rojas-Galindo’s 
5

husband was not precipitated by any interest in Rojas-Galindo herself. See SalazarPaucar, 281 F.3d at 1071.

Rojas-Galindo’s past harms are more analogous to the harms presented in

cases declining to find past persecution based on threats alone. See, e.g., Nahrvani 

v. Gonzales, 399 F.3d 1148, 1153–54 (9th Cir. 2005) (noting that “anonymous,

vague” death threats coupled with property damage did not amount to persecution);

Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that threats alone, without 

evidence the petitioner or his family was “ever touched, robbed, imprisoned, forcibly 

recruited, detained, interrogated, trespassed upon, or even closely confronted,” did 

not amount to persecution). And, as noted in Duran-Rodriguez, the statement that 

death threats alone can constitute persecution “in isolation, is clearly misleading.”

918 F.3d at 1030 (M. Smith, J., concurring).

“Persecution ‘is an extreme concept that does not include every sort of 

treatment our society regards as offensive.’” Id. at 1028 (quoting Nagoulko v. INS, 

333 F.3d 1012, 1016 (9th Cir. 2003)). And to reverse factual findings, “the evidence 

must compel a different conclusion from the one reached by the BIA.” Zheng v. 

Holder, 644 F.3d 829, 835 (9th Cir. 2011) (citations omitted). While reasonable 

minds could differ as to whether Rojas-Galindo’s past harm rises to the level of 

persecution, where reasonable minds can differ, the record does not compel a finding 

of persecution. See Nahrvani, 399 F.3d at 1154. Therefore, the BIA’s conclusion 
6

that the harm Rojas-Galindo suffered did not rise to the level of persecution is 

supported by substantial evidence. 

2. Without the presumption arising from past persecution, 8 C.F.R 

§ 208.16(b)(1)(i), Rojas-Galindo cannot show she faces a clear probability of future 

persecution if she is returned to Colombia. While she satisfied the subjective prong

of the inquiry with her credible testimony, she fails to satisfy the objective prong. 

Rojas-Galindo testified that she subjectively believed FARC members would 

target her. However, the country reports reflect that FARC-related violence has 

decreased over ninety percent since 2016, when FARC reached a peace agreement 

with the Colombian government. In light of these country conditions, the record does 

not compel a finding that Rojas-Galindo faces a clear probability of future 

persecution if she is returned to Colombia.

PETITION DENIED.
 

Rojas Galindo v. Wilkinson, No. 18-73150

MURGUIA, Circuit Judge, dissenting:

I disagree that the BIA’s conclusion that the harm Rojas-Galindo suffered 

did not rise to the level of persecution is supported by substantial evidence. 

Whether the cumulative effect of a petitioner’s past harm rises to the level of 

persecution “is heavily fact-dependent, and is perhaps best answered by comparing 

the facts of Petitioner’s case with those of similar cases.” Singh v. INS, 134 F.3d 

962, 967–68 (9th Cir. 1998). “We have repeatedly held that threats may be

compelling evidence of past persecution, particularly when they are specific and 

menacing and are accompanied by evidence of violent confrontations, nearconfrontations and vandalism.” Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 

2004) (collecting cases); see, e.g., Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th 

Cir. 2002). But, as the majority notes, cases based on threats alone rarely compel a 

finding of persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). 

When viewed cumulatively, Rojas-Galindo’s evidence of death threats 

against her and her daughter, physical attack and extortion of her husband, nearconfrontation with FARC members, and the FARC’s attempted kidnapping of her 

daughter compel a finding of past persecution. Rojas-Galindo’s past harm is more 

like the harm suffered in Mashiri than it is like the harms suffered in those cases 

based on threats alone. Compare Mashiri, 383 F.3d at 1120–21 (holding that the 

FILED

FEB 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

court need not decide whether any one experience was enough to establish 

persecution because when viewed cumulatively, the applicant’s evidence of 

threats, physical attacks against close family members, near-confrontations, and 

other non-physical harm compelled a finding of past persecution) with DuranRodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (concluding that the record 

did not compel a finding of persecution where the petitioner received only two 

threats and no acts of violence were taken against the petitioner, his family, or his 

property) and Lim, 224 F.3d at 936–37 (concluding that the record did not compel 

a finding of persecution where the petitioner received death threats in the mail and 

over the phone but neither the petitioner nor his family was ever confronted or 

attacked). 

While I appreciate that this is a close question and where reasonable minds 

can differ the record does not compel a finding of persecution, Nahrvani v. 

Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005), I disagree that Rojas-Galindo’s 

past harm can fairly be deemed “more analogous” to the harms suffered in cases 

based on threats alone, for as the majority notes, Rojas-Galindo “suffered the types 

of harm that we have found could cumulatively equate to persecution.” Because 

Rojas-Galindo’s past harm is not materially distinguishable from those cases where 

a finding of past persecution was compelled, the evidence here compels a different 

conclusion from the one reached by the BIA.
 3 

Accordingly, I would grant the petition for review and remand for the BIA 

to consider whether changed circumstances in Colombia or the possibility of 

Rojas-Galindo’s relocation could rebut the presumption of future persecution. See 

8 C.F.R § 208.16(b)(1)(i).