Facts
- Morrow was charged with possession with intent to promote child pornography, to which he pleaded guilty and received a sentence including probation and community control [lines="42-49"].
- Six months after beginning community control, Morrow was discovered accessing the internet, which violated probation conditions [lines="57-64"].
- A probation violation affidavit was filed following Morrow's admitted internet use to watch movies and play online games [lines="67-75"].
- The trial court found Morrow willfully and substantially violated his probation based primarily on his internet usage [lines="76-78"].
- Morrow appealed the revocation of his probation, arguing that the trial court improperly considered internet gaming as grounds for violation [lines="82-86"].
Issues
- Whether the trial court erred by considering Morrow's internet gaming in the revocation of his probation [lines="82-86"].
- Whether Morrow's access to the internet for watching movies constituted a substantial violation of his probation conditions [lines="109-111"].
Holdings
- The court found no error in the trial court's reliance on online gaming, stating that reliance on improper grounds does not require reversal if proper grounds suffice for the decision [lines="108-101"].
- The court upheld that Morrow's access to the internet to watch movies constituted a substantial violation of probation, affirming the trial court's discretion in the matter [lines="178-180"].
OPINION
Case Information
*1 Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges.
Maria Consuelo Lozano-Membreno, a native and citizen of El Salvador, *2 petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal of an Immigration Judge ’s (IJ) order denying her application for asylum, withholding of removal, or relief under the Convention Against Torture (CAT).
We review the agency’s factual findings for substantial evidence. Haile v. Holder , 658 F.3d 1122, 1125 (9th Cir. 2011). “Under this standard, we must uphold the agency determination unless the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr , 918 F.3d 1025, 1028 (9th Cir. 2019).
1. The record does not compel the conclusion that the Salvadoran government is unable or unwilling to protect Lozano-Membreno and her family. For instance, after a shooting incident was reported to authorities in 2017, the government reasonably responded to try to protect Lozano- Membreno’s family. Cf. Truong v. Holder , 613 F.3d 938, 941 (9th Cir. 2010); accord Nahrvani v. Gonzales 1148, 1154 (9th Cir. 2005). Salvadoran officials expeditiously responded to the report (arriving fifteen minutes after Castillo — Membreno’s partner— called), collected evidence, and accompanied Castillo to the prosecutor’s office.
When later threatening, albeit non-criminal, activity was reported, Lozano- own testimony reasonably suggests that the Salvadoran government took such threats seriously. This record evidence supports the conclusion that the Salvadoran government was willing to protect Lozano-Membreno and her family from persecution.
Additionally, the fact that gang members made comments to Lozano- Membreno’s sister that they knew Castillo filed a police report raises the reasonable inference, supported by substantial evidence, that the gang members were “afraid they might get in trouble,” which in turn supports the BIA’s factual determination. This evidence reasonably suggests that the Salvadoran government is not powerless to protect Lozano-Membreno and her family from persecution. See J.R. v. Barr , 975 F.3d 778, 782 (9th Cir. 2020).
Thus, Lozano-Membreno has not shown that the record compels the conclusion that the Salvadoran government would be unwilling or unable to protect her. So she is not entitled to asylum or withholding of removal. See Navas v. INS , 217 F.3d 646, 655 – 56 (9th Cir. 2000) (asylum); Castro-Perez v. Gonzales 1069, 1072 (9th Cir. 2005) (withholding of removal).
2. For the same reason, Lozano-Membreno has not demonstrated “ sufficient state action involved ” in any harm she may experience upon returning to El Salvador. See Garcia-Milian v. Holder , 755 F.3d 1026, 1033 (9th Cir. 2010) (citation omitted). To the contrary, there is substantial record evidence that the Salvadoran government reasonably responded to and investigated Castillo and reports. Thus, her CAT claim fails.
PETITION DENIED.
[*] 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).