NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-1835

_____________

JULIANA RODRIGUEZ-MEJIA DE CALO,

Petitioner

 

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

On Petition for Review of a Final Order of the 

Board of Immigration Appeals

No. A206-308-225

Immigration Judge: John P. Ellington

______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on

December 16, 2022

Before: RESTREPO, McKEE, and SMITH, Circuit Judges

(Opinion filed: January 11, 2023)

_____________________

OPINION

______________________

McKEE, Circuit Judge:



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

Juliana Rodriguez-Mejia De Calo (“Rodriguez-Mejia”) seeks review of the Board 

of Immigration Appeals’ denial of her application for withholding of removal and relief 

under the Convention Against Torture. An Immigration Judge denied Rodriguez-Mejia’s 

petition because it found Rodriguez-Mejia did not testify credibly and did not meet her 

burden of proof for withholding of removal and protection under the CAT. The BIA 

presumed that Rodriguez-Mejia was credible but affirmed the IJ’s holding that 

Rodriguez-Mejia did not meet her burden of proof for withholding of removal and 

protection under the CAT. We will assume that Rodriguez-Mejia’s testimony was 

credible because the BIA expressly declined to reach the IJ’s adverse credibility 

determination.1 Despite Rodriguez-Mejia’s credible fear of returning to Guatemala, we 

have no choice but to affirm the BIA’s decision and deny the petition for review because 

of our deferential standard of review.

2

 

I.

Rodriguez-Mejia is a citizen of Guatemala. For several years, gang members 

repeatedly threatened Rodriguez-Mejia and her son, Oliver, because he refused to join 

their gang. They told Oliver “[t]hat if he did not work with them, they would kill his 

whole family.”3 Gang members also beat Oliver, fracturing his head and arm, and pushed 

Rodriguez-Mejia to the ground. Because she was afraid to file a complaint, RodriguezMejia did not make any reports to the police. 

1 Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).

2 We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1).

3 AR 143.
3

Rodriguez-Mejia and Oliver attempted to escape the gangs by relocating to Santa 

Lucia, a Guatemalan town six or seven hours from their home. Gang members found 

them in Santa Lucia and tried to abduct Oliver while they were in a store. The police 

were also in the store at the time and Rodriguez-Mejia asked the officers for help. The 

police intervened and took Oliver to Rodriguez-Mejia’s sister-in-law’s house, but they

“didn’t do anything” to the gang members.

4

In 2016, after the attempted abduction, Rodriguez-Mejia and Oliver moved to the 

United States to escape the threats from gang members. Approximately ten months after 

moving to the United States, gang members killed Rodriguez-Mejia’s cousin in 

Guatemala because he would not disclose Rodriguez-Mejia’s and Oliver’s whereabouts.

II.

If the BIA “‘affirmed and partially reiterated’ the IJ’s determinations, we review 

both decisions.”5“If the BIA relied on only some of the grounds given for denying relief, 

we review only those grounds.”6“In reviewing decisions of the BIA, this Court applies a 

deferential standard of review.”

7 While we review legal determinations de novo,8

“factual 

findings are subject to substantial-evidence review and may not be set aside ‘unless any 

reasonable adjudicator would be compelled to conclude to the contrary.’”

9

4 AR 147–48.

5 Blanco v. Att’y Gen., 967 F.3d 304, 310 (3d Cir. 2020) (quoting Sandie, 562 F.3d at 

250).

6

Id.

7 Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).

8 Blanco, 967 F.3d at 310.

9 Galeas Figueroa v. Att’y Gen., 998 F.3d 77, 91 (3d Cir. 2021) (quoting 8 U.S.C. § 

1252(b)(4)(B)).
4

To be entitled to withholding of removal, “an applicant must prove that it is more 

likely than not that he or she will be persecuted on account of race, religion, nationality, 

membership in a particular social group, or political opinion upon removal to a particular 

country.”10 Persecution, however, is not established by harm alone nor by a likelihood of 

future harm. In addition, “the government must also be complicit to some degree in the 

harm through either act or omission.”11 Thus, the applicant must establish that “the 

government was ‘unable or unwilling to control’ the individual or group that committed 

the harm.”12 The BIA’s determination as to whether an applicant has proven government 

complicity is a finding of fact that is subject to substantial-evidence review.13

The BIA affirmed the IJ’s finding that Rodriguez-Mejia did not establish 

persecution by gangs that the Guatemalan government was unable or unwilling to 

control. The BIA explained that when gang members attempted to abduct RodriguezMejia’s son, “police intervened to protect her son, thus indicating that authorities were 

both willing and able to protect her son.”14 Rodriguez-Mejia argues that the police’s 

failure to arrest the gang members who tried to abduct her son, as well as country 

conditions that indicate corruption within the police force, establishes that the BIA erred 

in finding the police were willing and able to protect her son. 

10 Id. at 86.

11 Id. at 86 & n.5.

12 Id. at 87 (quoting Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir. 

2007)). 

13 Id. at 91.

14 AR 4.
5

Although the police failed to arrest the gang members, they successfully thwarted 

Oliver’s abduction and were responsive to Rodriguez-Mejia’s request for assistance. We 

understand Rodriguez-Mejia’s argument to the contrary, but this record simply does not 

allow us to reverse the BIA’s conclusion that she did not establish the required 

acquiescence or complicity. “[I]f a government is willing and able to afford some 

protection to an individual against harms inflicted by private actors, then that government 

is not sufficiently complicit in the private conduct for those acts to constitute persecution 

for purposes of relief from removal.”15 Rodriguez-Mejia’s focus on general corruption in 

the police force is not enough to allow us to ignore the BIA’s finding and conclude that 

the police are unwilling to intervene in gang operations. Moreover, “a government’s 

inability or unwillingness to control a violent group as a general matter does not 

necessarily mean that the government cannot or will not protect the specific applicant.”16

Because substantial evidence supports the BIA’s conclusion that Rodriguez-Mejia did not 

establish that the Guatemalan government would be complicit in the harm caused by 

gang members, we must affirm the BIA’s denial of Rodriguez-Mejia’s application for 

withholding of removal.

To succeed on a CAT claim, an applicant must establish government acquiescence 

to the torture she fears.17 “Acquiescence of a public official requires that the public 

official, prior to the activity constituting torture, have awareness of such activity and 

15 Galeas, 998 F.3d at 90.

16 Id. at 89.

17 Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).
6

thereafter breach his or her legal responsibility to intervene to prevent such activity.”18

Determining whether an applicant has established acquiescence involves a two-prong 

inquiry. The first prong involves a factual finding as to how public officials will likely act 

in response to the harm the applicant fears.19 As previously discussed, the BIA found that 

when Rodriguez-Mejia requested the assistance of the police, the officers intervened to

protect her son. Substantial evidence supports the BIA’s conclusion that the government 

would not acquiesce to Rodriguez-Mejia’s torture. We must therefore affirm the BIA’s 

denial of Rodriguez-Mejia’s application for protection under the CAT.

III.

Although we are sympathetic to the very real dangers posed by gangs in 

Guatemala, for the above reasons, we must deny Rodriguez-Mejia’s petition for review.

18 8 C.F.R. § 1208.18(a)(7).

19 Myrie, 855 F.3d at 516.