Chavez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2023
• Docket: 22-345
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANA CAROLINA CHAVEZ, No. 22-345 Agency No. Petitioner, A206-622-017 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 7, 2023 ** Pasadena, California

Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District Judge.***

Petitioner Ana Carolina Chavez, a native and citizen of El Salvador,

timely seeks review of a Board of Immigration Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s (“IJ”) denial of asylum,

* 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). *** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. withholding of removal, and protection under the Convention Against Torture

(“CAT”). “Our review is limited to the BIA’s decision except [when] the IJ’s

opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831

(9th Cir. 2022). We review for substantial evidence the agency’s factual

findings underlying the denials of asylum, withholding of removal, and CAT

protection. Id. We review de novo due process challenges to immigration

decisions. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). We deny the

petition.

1. We assume, without deciding, that “young women in El Salvador” and

“young women in El Salvador who have been abused by their domestic

partners” are cognizable particular social groups. But substantial evidence

supports the agency’s finding that the harm that Petitioner suffered in the past

and that she fears in the future is not “on account of” her membership in either

proposed group. See Ayala v. Holder, 640 F.3d 1095, 1097–98 (9th Cir. 2011)

(per curiam) (holding that substantial evidence supported the finding that any

persecution was not “on account of” the petitioner’s membership in a particular

social group, a required element of the claim for relief). Substantial evidence

supports the agency’s finding that, instead, Petitioner’s domestic partner harmed

her because of their relationship and made threats after she left him, purely

personal motive. See Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir. 2011)

(per curiam) (“A personal dispute is not, standing alone, tantamount to

persecution . . . .”). Accordingly, Petitioner’s asylum and withholding claims

2 fail.

2. Substantial evidence also supports the agency’s finding that Petitioner

is not likely to face torture by, or “with the consent or acquiescence of, a public

official . . . or other person acting in an official capacity” if returned to El

Salvador. 8 C.F.R. § 1208.18(a)(1). Although Petitioner claims that the police

failed to protect her after she filed a report against her partner, “a general

ineffectiveness on the government’s part to investigate and prevent crime will

not suffice to show acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829,

836 (9th Cir. 2016). Therefore, Petitioner’s claim for CAT protection also fails.

3. Finally, Petitioner argues that the BIA’s process was fundamentally

unfair and therefore violated her constitutional rights because the BIA

“streamlined” the case by allowing a single member of the BIA to affirm the

IJ’s decision. See 8 C.F.R. § 1003.1(e) (authorizing a single member of the

BIA to affirm, with or without opinion, an IJ’s decision). Although a single

member of the BIA affirmed the IJ’s denial, the appellate IJ issued a written

decision that provided a full explanation for denying Petitioner’s claims.

Section 1003.1(e) explains how the agency manages its cases and that “[u]nless

a case meets the standards for assignment to a three-member panel . . . , all

cases shall be assigned to a single Board member for disposition.” 8 C.F.R.

§ 1003.1(e); see also 8 C.F.R. § 1003.1(e)(6) (listing the circumstances under

which a three-member panel is required). Petitioner has not shown that this

case meets that standard and therefore fails to explain how the “outcome of the

3 proceeding may have been affected by the alleged violation.” Zolotukhin v.

Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (emphasis omitted) (citation and

internal quotation mark omitted). Because Petitioner fails to show that she was

prejudiced when the BIA followed its standard procedure, her procedural due

process claim fails.

PETITION DENIED. The stay of removal will remain in place until

the mandate issues.