Ileana Rivera Medina v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2021
• Docket: 18-73306
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ILEANA LUCELY RIVERA MEDINA, No. 18-73306

Petitioner, Agency No. A204-643-462

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted March 3, 2021** Phoenix, Arizona

Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.

Ileana Lucely Rivera Medina, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals (BIA) final removal order denying

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. her applications for withholding of removal and Convention Against Torture

(CAT) relief. We have jurisdiction under 8 U.S.C. § 1252. We review denials of

withholding of removal and CAT relief for substantial evidence, and we may grant

this petition only if “the evidence not only supports a contrary conclusion, but

compels it.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016).

1. Petitioner first argues that the BIA erred in denying her motion to remand

her immigration case for termination. Here, she contends that the Immigration

Judge (IJ) who presided over her case lacked jurisdiction because the notice to

appear (NTA) omitted the date and time of her initial removal hearing.

Although Petitioner was served with an NTA that omitted the date and time

of her initial removal hearing, it is undisputed Petitioner had actual notice of the

hearing date and time through a subsequent notice of hearing that she received.

The IJ had jurisdiction over Petitioner’s removal proceedings notwithstanding the

absence of the hearing date and time from the initial NTA. See Karingithi v.

Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019).

2. Petitioner next contends that the BIA improperly denied her application for

withholding of removal when it decided that her proffered particular social group

was not cognizable under the Immigration and Naturalization Act (INA).

“[A] particular social group must exist independently of the harm asserted in

an application for asylum or statutory withholding of removal . . . and individuals

2 in the group must share a narrowing characteristic other than their risk of being

persecuted.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1081 (9th Cir. 2020) (quoting

Matter of A-B-, 27 I. & N. Dec. 316, 334–35 (A.G. 2018)) (internal quotation

marks and citations omitted).

Here, Petitioner claims past persecution on account of her membership in the

particular social group of “women fleeing domestic abuse.” The BIA permissibly

held that Petitioner failed to demonstrate her particular social group exists

independently of the past persecution set out in her application for withholding of

removal. See id.

3. Petitioner further insists the BIA wrongly denied her withholding of removal

on the basis of erroneous factual findings that her membership in the particular

social groups of “family” and “women fleeing domestic abuse” is not a reason for

the harm she fears in Mexico. Petitioner alternatively asks us to revive her

application for withholding of removal because the BIA made a groundless factual

finding that she submitted insufficient evidence that the Mexican government will

be unable or unwilling to protect her from harm.

The record does not compel any conclusions contrary to those reached by

the BIA, so we cannot reverse the BIA’s denial of Petitioner’s request for

withholding of removal in this case. See Budiono v. Lynch, 837 F.3d 1042, 1046

(9th Cir. 2016) (quoting Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th

3 Cir. 2011)) (“We review [the BIA’s] factual findings for substantial evidence;

factual findings should be upheld ‘unless the evidence compels a contrary

result.’”).

4. Petitioner asks this Court to remand her CAT claim because the BIA failed

to consider her country conditions evidence. Alternatively, Petitioner asks us to

reverse the BIA’s rejection of her CAT claim because this evidence compels a

conclusion that Petitioner will be tortured with the Mexican government’s consent

or acquiescence.

However, the record does not support her contentions. The BIA determined

that Petitioner’s country conditions evidence “does not establish that government

authorities would be unwilling or unable to protect her.” See Garcia-Milian v.

Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware

of a particular crime, but failed to bring the perpetrators to justice, is not in itself

sufficient to establish acquiescence in the crime. Instead, there must be evidence

that the police are unable or unwilling to oppose the crime.”). The BIA’s order

reflects the BIA sufficiently considered country conditions in connection with

Petitioner’s withholding of removal and CAT claims. See Najmabadi v. Holder,

597 F.3d 983, 990 (9th Cir. 2010) (explaining that the BIA “does not have to write

an exegesis on every contention”); Larita-Martinez v. INS, 220 F.3d 1092, 1096

(9th Cir. 2000) (stating that the BIA presumably considers all relevant evidence

4 absent an indication to the contrary). Finally, Petitioner’s proffered country

conditions evidence does not compel us to conclude that she will be tortured with

the Mexican government’s consent or acquiescence. See Budiono, 837 F.3d at

1046.

PETITION DENIED.