                                                                              FILED
                             NOT FOR PUBLICATION                               JUL 30 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ALMA MEDRANO-LOPEZ; DAYANA                       No. 11-70736
ASCENCIO-MEDRANO; RANCES
ASCENCIO-MEDRANO,                                Agency Nos.        A088-038-054
                                                                    A088-038-055
              Petitioners,                                          A088-038-058

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 6, 2014
                              Pasadena, California

Before: TROTT and CALLAHAN, Circuit Judges, and CHEN, District Judge.**


       Alma Medrano Lopez and her daughter and son, Dayana and Rances

(collectively, the “Medranos”), appeal from the Board of Immigration Appeals’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
(“BIA’s”) denial of relief pursuant to the Convention Against Torture (“CAT”).

The Medranos contend that the BIA impermissibly applied de novo review to the

Immigration Judge’s (“IJ’s”) factual findings.

      We conclude that: (1) the BIA articulated and applied the proper standard of

review to the IJ’s findings of fact and incorporated them into its decision; and (2)

CAT eligibility is a mixed question of law and fact and the record does not compel

a finding that the Medranos qualify for relief under CAT. We deny the petition.1

      1. The Medranos have not shown that the BIA applied an improper

standard of review to the IJ’s factual findings.

      The BIA recognized and acknowledged that the IJ’s factual findings were to

be reviewed for clear error and accepted the factual findings made by the IJ. See

Perez-Palafox v. Holder, 744 F.3d 1138, 1145 (9th Cir. 2014). The BIA did not

reverse the IJ’s positive credibility determination regarding Mrs. Medrano’s

testimony that she received a phone call from a man claiming to be affiliated with

the police. However, the BIA focused on whether the Medranos had met their

burden of proof in establishing police involvement, thus qualifying them for CAT

relief. The BIA acknowledged that “the record indicates police involvement in



      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                          2
common crimes,” but also found there was no evidence of systemic government

sanctioned corruption, reiterating the IJ’s finding that the evidence in this case was

“scant.” The BIA’s review of the IJ’s factual findings was appropriate.

      2. A reasonable fact finder would not be compelled to conclude that the

BIA erred in finding the Medranos ineligible for CAT relief.

      A determination of the likelihood of future torture for purposes of CAT

eligibility is a mixed question of law and fact involving a two-step inquiry: (1)

“what is likely to happen if the petitioner is removed” (a factual determination);

and (2) “does what is likely to happen amount to the legal definition of torture” (a

legal question). Ridore v. Holder, 696 F.3d 907, 915 (9th Cir. 2012) (emphasis

omitted); Perez-Palofox, 744 F.3d at 1145. “For an act to constitute torture it must

be: (1) an act causing severe physical or mental pain or suffering; (2) intentionally

inflicted; (3) for a proscribed purpose; (4) by or at the instigation of or with the

consent or acquiescence of a public official who has custody or physical control of

the victim; and (5) not arising from lawful sanctions.” Ridore, 696 F.3d at 912

(internal quotation marks omitted). An applicant seeking CAT protection bears the

burden of establishing: (1) that it is more likely than not that he will suffer

intentionally cruel and inhuman treatment; and (2) that this treatment will have

been “‘inflicted by or at the instigation of or with the consent or acquiescence of a


                                           3
public official or person acting in an official capacity.’” Abufayad v. Holder, 632

F.3d 623, 631-32 (9th Cir. 2011) (quoting 8 C.F.R. § 1208.18(a)(1)).

      Here, on the basis of the IJ’s factual findings, the BIA determined that any

harm the Medranos were likely to suffer in the future did not meet the legal

definition of torture. Specifically, the BIA determined that the Medranos failed to

show that any harm Dayana might suffer in the future would be at the instigation or

acquiescence of the government. The BIA further noted evidence in the record

indicating that in El Salvador complaints against police officers are generally

investigated and prosecuted. The BIA clearly stated that even if the police were

involved in common crimes such as Dayana’s kidnaping, any involvement did not

rise to the level of systemic participation, and thus does not meet the legal

definition of torture. Therefore, as a legal matter the BIA “[could] not conclude

that the respondent satisfied her burden of proving eligibility for protection under

[CAT].”

      Accordingly, substantial evidence supports the BIA’s conclusion that the

Medranos failed to show that it was more likely than not that they would be

tortured should they return to El Salvador. See Abufayad, 632 F.3d at 631. While

reasonable minds could differ as to whether the petitioner faced more than a 50%

chance of torture upon return, “a reasonable factfinder would not be compelled to


                                          4
conclude that the BIA erred in its determination.” Id.; see also Blandino-Medina v.

Holder, 712 F.3d 1338, 1348 (9th Cir. 2013) (accepting the IJ’s finding of past

persecution, but concluding that the BIA properly “found that the record as a whole

provided insufficient evidence to establish that it was ‘more likely than not’ that

[the petitioner] would be tortured by the . . . government” in the future). The BIA

clearly articulated the “clear error” standard of review for factual determinations

by the IJ, and accepted those factual findings. The BIA’s de novo review of the

sufficiency of the Medranos’ CAT claims was appropriate and its denial of CAT

was based on substantial evidence. The record does not compel reversal.

      The petition is DENIED.




                                          5
