                                                                          FILED
                            NOT FOR PUBLICATION                            OCT 17 2013

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



                            FOR THE NINTH CIRCUIT


KLEDY ELIZABETH CANO-                            No. 09-71691
VILLATORO,
                                                 Agency No. A076-854-094
              Petitioner,

  v.                                             MEMORANDUM*

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 well-

founded fear of future persecution from the guerillas due to significant changes in

Guatemala also was supported by substantial evidence in the record, including


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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.




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