                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JANET ULLOA-MARTINEZ,                            No. 06-70123

              Petitioner,                        Agency No. A097-475-053

  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 May 6, 2010
                              Pasadena, California

Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.**

       Petitioner Janet Ulloa-Martinez (“Ulloa”) petitions for review of a decision

of the Board of Immigration Appeals (“BIA”) affirming the denial of Ulloa’s

applications for asylum and for protection under the United Nations Convention

Against Torture (“CAT”). We deny the petition.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Edward Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
      We review the BIA’s determination that Ulloa was ineligible for asylum and

for CAT protection for substantial evidence. See Singh v. INS, 134 F.3d 962, 966

(9th Cir. 1998) (asylum); Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir.

2006) (CAT). “Under this standard, a petitioner contending that the BIA’s

findings are erroneous must establish that the evidence not only supports that

conclusion, but compels it.” Singh, 134 F.3d at 966 (quotation marks and brackets

omitted).

      An asylum applicant must show either past “persecution or a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Ulloa

asserts that she has been persecuted, and faces a well-founded fear of future

persecution, because of a business dispute involving her mother. Although

membership in a family may constitute a particular social group in the context of

establishing eligibility for asylum or withholding of removal, Thomas v. Gonzales,

409 F.3d 1177, 1188-89 (9th Cir. 2005) (en banc), vacated and remanded on other

grounds, 547 U.S. 183 (2006), Ulloa has nonetheless failed to establish her

eligibility for asylum. Even assuming that Ulloa’s rape by two unknown men was

motivated in whole or in part by her family membership, “only when the alleged

persecution precludes relocation and exceeds the government’s ability or will to


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control can a claim of persecution based on membership in a particular family lead

to eligibility for asylum.” Thomas, 409 F.3d at 1189. Here, the record does not

compel the conclusion that the Honduran government could not, or would not,

prevent persecution of Ulloa based on her family membership. First, we have

explained that “[i]t is, of course, far more likely that persecution [on the basis of

family membership] will reach [the requisite] proportions [to establish an asylum

claim] when kinship ties are mingled with political religious, racial, or ethnic

affinities,” id., but Ulloa makes no such claim here: by Ulloa’s own testimony, her

alleged persecution on the basis of family membership was the result of a business

dispute. Moreover, the record does not compel the conclusion that the government

was unable or unwilling to control Ulloa’s persecutors or would be unable or

unwilling to do so in the future. The failure of the Honduran police to make

progress in investigating and prosecuting Ulloa’s attackers can more easily be

explained by the ponderous investigative hurdles they faced than by their

acquiescence in the attack.

      Ulloa also seeks protection under the CAT. To obtain protection under the

CAT, an applicant must establish “that it is more likely than not that . . . she would

be tortured,” 8 C.F.R. § 208.16(c)(2), where “[t]orture is defined as any act by

which severe pain or suffering, whether physical or mental, is intentionally


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inflicted on a person for [certain] purposes . . . when such pain or suffering is

inflicted by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” Id. § 208.18(a)(1). The BIA

determined that any acts that might have constituted torture were not inflicted by or

with the acquiescence of a person acting in an official capacity, and the record does

not compel a contrary conclusion.

      PETITION DENIED.




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