Crispina Jimenez Rivera v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 2020
• Docket: 17-71290
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISPINA JIMENEZ RIVERA; YOHANA No. 17-71290 JASLIN MURILLO JIMENEZ, Agency Nos. A206-680-667 Petitioners, A206-680-668

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 2, 2020** Pasadena, California

Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.

Petitioners Crispina Jimenez Rivera and Yohana Jaslin Murillo Jimenez are

citizens of Mexico who unlawfully entered the United States. Rivera applied for

* 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 Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. asylum, withholding of removal, and relief under CAT, with her daughter,

Jimenez, claiming derivative relief. The Immigration Judge (the “IJ”) denied

relief, and the Board of Immigration Appeals (the “BIA”) affirmed. Petitioners

now seek review of the BIA’s decision as to Rivera’s asylum and CAT claims.1

We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s

determinations of questions of law de novo and findings of fact for substantial

evidence. Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). The BIA’s

findings of fact “are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

The BIA correctly denied Rivera’s claim for asylum. An asylum applicant

must establish that she is subject to persecution on one of several grounds,

including her membership in a cognizable particular social group. 8 U.S.C.

§§ 1101(a)(42), 1158(b)(1)(A). Rivera claims that she was persecuted based on

her membership in two social groups: 1) Mexican women unable to leave their

relationships and 2) wealthy Mexican landowners.

However, the record demonstrates that Rivera is not a Mexican woman

unable to leave her relationship because she left her husband several times. While

her experiences could conceivably constitute a cycle of abuse, there is insufficient

1 Because the parties are familiar with the facts of Rivera’s Petition, we do not discuss them at length here.

2 evidence to compel a finding contrary to the BIA’s determination that Rivera was

able to leave her relationship.

The BIA also correctly denied Rivera’s claim for asylum as a wealthy

Mexican landowner. On appeal, Rivera argues that the BIA improperly focused on

whether homeownership, rather than landownership, was a cognizable social

group, because it was not an issue addressed by the IJ, and that she was not put on

notice that such an issue needed to be addressed before the BIA. Rivera claims

that, as a result, “the Board erred in failing to address Petitioner’s arguments that

she was a member of [her proposed particular social group].”

However, the BIA actually held that Rivera failed to establish both that her

proposed social group of wealthy landowners in Mexico was cognizable and that

she was a member of that group. In other words, contrary to Rivera’s argument,

the BIA did address the IJ’s finding that Rivera was not a member of a cognizable

social group. Rivera does not dispute the merits of that finding and has waived any

such arguments. See Rizk v. Holder, 629 F.3d 1083, 1091 n. 3 (9th Cir. 2011).

The BIA also correctly held that Rivera did not qualify for withholding of

removal under CAT. To qualify for relief from removal under CAT, an applicant

must establish that “it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is

“an extreme form of cruel and inhuman treatment” that includes “severe pain or

3 suffering.” Id. §§ 208.18(a)(1)–(2).

Rivera does not point to any evidence of past torture, which is “ordinarily

the principal factor” in determining the potential for future torture. Edu v. Holder,

624 F.3d 1137, 1145 (9th Cir. 2010). While Rivera was abused repeatedly by her

husband and threatened with murder, the facts do not rise to the level of extreme

treatment needed to qualify as torture. See Kumar v. Gonzales, 444 F.3d 1043,

1047, 1055–56 (9th Cir. 2006). Furthermore, none of the gang violence that

Rivera’s family experienced was directed at her, but rather was received by her

children. Rivera also does not face a significant risk of future torture, as she can

live away from her husband and further gang violence upon her return to Mexico.

Therefore, substantial evidence supports the BIA’s finding that it is not more likely

than not that Rivera will be tortured if she returns to Mexico, and the BIA properly

denied her request for relief under CAT.

PETITION DENIED.