John Rillera v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2022
• Docket: 18-70653
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN DELMENDO RILLERA, No. 18-70653

Petitioner, Agency No. A041-901-277

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 14, 2022** San Francisco, California

Before: BEA, CHRISTEN, and BRESS, Circuit Judges.

Petitioner John Delmendo Rillera, a citizen of the Philippines, seeks review

of a final decision of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from an immigration judge’s (“IJ”) denial of his request for a continuance

and protection under the Convention Against Torture (“CAT”). We have jurisdiction

* 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). pursuant to 8 U.S.C. § 1252(a)(1), see Garcia v. Lynch, 798 F.3d 876, 879-81 (9th

Cir. 2015), and deny the petition.

1. The Request for Continuance of Hearing

This Court reviews denials of requests for continuances of hearings for abuse

of discretion and will overturn a denial only if the petitioner shows “clear abuse.”

Id. at 881 (quoting Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008)).

“When reviewing an IJ’s denial of a continuance, we consider several factors,

including: (1) the nature of the evidence not obtained or admitted as a result of the

denial of the continuance, (2) the reasonableness of the alien’s conduct, (3) the

inconvenience to the court, and (4) the number of continuances previously granted.”

Id. at 881 (citing Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)).

Rillera had already requested and had received five continuances of hearings

over the course of his removal proceedings, including three such continuances to

prepare his CAT application. Rillera argues that the purpose of the latest continuance

was to obtain further documentation in support of his claim that he will lack access

to quality medical care in the Philippines. Because Rillera has not shown why the

five earlier continuances were inadequate to obtain the records, there was no abuse

of discretion and Rillera cannot show that he was prejudiced by the denial of the

continuance.

2. CAT Relief

2 To qualify for CAT relief, an applicant must prove more likely than not that

he will be tortured, by or with the consent or acquiescence of the government, if he

returns to his native country. 8 C.F.R. § 1208.18(a)(1). Substantial evidence supports

a finding that Rillera will not suffer torture if returned to the Philippines. See Del

Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (reviewing factual

findings underlying the denial of CAT relief for substantial evidence).

Rillera’s claim that he will lack access to the same quality of health care in

the Philippines that he enjoys in the United States is no basis for CAT relief, as

“inhumane conditions and lack of access to appropriate medical care do not, in and

of themselves, constitute torture.” Cole v. Holder, 659 F.3d 762, 773 (9th Cir. 2011).

Rillera also testified that, during a 2013 visit to the Philippines, his cousins

received a note from a local tribe threatening Rillera. His cousins told him the threat

was made because Rillera’s uncle shot and killed two tribal members. Rillera’s

cousins had received similar threats. When Rillera went to the police, he was told

there was nothing they could do. Because Rillera was not physically harmed during

his 2013 trip, “unfulfilled threats” do not constitute torture, Hoxha v. Ashcroft, 319

F.3d 1179, 1182 (9th Cir. 2003), his family continues to live unharmed in the

Philippines, and the government’s failure to prevent crime does not “suffice to show

acquiescence,” Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016), CAT

relief was permissibly denied.

3 PETITION DENIED.