FILED NOT FOR PUBLICATION APR 22 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FLORENTINA CARRETO-ESCOBAR; No. 18-71073 et al., Agency Nos. A208-188-614 Petitioners, A208-188-615 A208-188-616 v. A208-188-617 WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted, Submission Deferred April 14, 2020** Resubmitted April 22, 2020 Pasadena, California Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges. Florentina Carreto-Escobar (“Carreto-Escobar”) and her three minor children (collectively, “Petitioners”), natives and citizens of Guatemala, petition * 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). for review of a Board of Immigration Appeals (“BIA”) order dismissing their appeal from an immigration judge’s denial of their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings for substantial evidence and questions of law de novo. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013). Because neither the immigration judge (“IJ”) nor the BIA made any explicit adverse credibility finding, we assume Petitioners’ factual assertions are true. See Ming Dai v. Sessions, 884 F.3d 858, 863 (9th Cir. 2018). We grant the petition for review in part, deny it in part, and we remand for further proceedings. 1. Substantial evidence supports the BIA’s affirmance of the IJ’s denial of the Petitioners’ applications for asylum because the harm they suffered was not “on account of” a protected ground. Carreto-Escobar’s eldest son testified that gang members assaulted him because he refused to join them, which is not a protected ground for immigration relief, see Barrios v. Holder, 581 F.3d 849, 852–53 (9th Cir. 2009), partially abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc) (“[A petitioner’s] refusal to join a gang does not make him a member of a particular social group or constitute a political opinion.”). In addition, Carreto-Escobar’s testimony does not compel the 2 conclusion that her Mam ethnicity was “one central reason” for her persecution, given the other testimonial and record evidence of widespread gang violence. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [applicant’s] desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). For the same reasons, the record does not compel the conclusion that any future harm will be “on account of” a protected ground. 2. The BIA denied withholding of removal based on its denial of asylum. However, neither of the two reasons underlying the BIA’s denial of asylum provides a basis for denying withholding of removal. First, substantial evidence does not support the BIA’s determination that the harm petitioners suffered does not ...
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