Maria Ramos-Portillo v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 14, 2020
• Docket: 18-73274
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA MAGDALENA RAMOS- No. 18-73274 PORTILLO, Agency No. A087-941-736 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 12, 2020** San Francisco, California

Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,*** District Judge.

Petitioner Maria Magdalena Ramos-Portillo seeks review of a decision by

the Board of Immigration Appeals (“BIA”) dismissing her appeal from an

* 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 James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. immigration judge’s (“IJ”) denial of withholding of removal and protection under

the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §

1252, and deny the petition.

We review the BIA’s factual findings for substantial evidence. Villavicencio

v. Sessions, 904 F.3d 658, 663 (9th Cir. 2018) (as amended). “The BIA’s factual

findings are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Id. at 663–64 (internal quotation marks omitted). Our

review is “limited to the BIA’s decision, except to the extent that the IJ’s opinion is

expressly adopted.” Brezilien v. Holder, 569 F.3d 403, 411 (9th Cir. 2009)

(internal quotation marks omitted).

1. We affirm the BIA’s determination that Petitioner’s proposed

particular social groups were not socially distinct in Salvadorian society. Whether

a particular social group is cognizable is a question of law reviewed de novo.

Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). But social distinction

relies on underlying factual issues, reviewed for substantial evidence. Garay Reyes

v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016), cert. denied, 138 S. Ct. 736 (2018).

To determine whether Petitioner’s proposed particular social groups satisfy

the requirement of social distinction, we ask “whether a group can accurately be

described in a manner sufficiently distinct that the group would be recognized, in

the society in question, as a discrete class of persons.” Henriquez-Rivas v. Holder,

2 707 F.3d 1081, 1091 (9th Cir. 2013) (en banc) (internal quotation marks and

citation omitted). Petitioner submitted no evidence that Salvadoran society would

see her as part of a socially distinct group based on her prior relationship with a

man who abused her while they were in the United States. Because the record

evidence does not compel the conclusion that the proposed groups are viewed as

distinct in Salvadoran society, we affirm the BIA’s finding that they are not

cognizable social groups.

2. We affirm the agency’s denial of CAT protection. The record

evidence does not compel the conclusion that it is more likely than not that

Petitioner would be tortured if she is returned to El Salvador. Substantial evidence

supports the BIA’s determination that Petitioner’s fear of torture is speculative.

She does not know the whereabouts of her abuser, who separated from her in 2015

and has not contacted her since. Speculative claims of torture like these are

insufficient for relief under CAT. Zheng v. Holder, 644 F.3d 829, 835–36 (9th Cir.

2011).

That the BIA did not specifically discuss a phone call between Petitioner’s

abuser and her cousin does not compel reversal of its conclusion that Petitioner has

not established that she would likely be tortured if removed to El Salvador. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010). The BIA’s decision

reflects that it properly considered the record. Further, the phone call does not

3 establish that Petitioner would more likely than not be tortured if removed to El

Salvador, especially because the abuser has not contacted her in the five years

since the phone call.

Nor does the record compel reversal of the agency’s finding that the

Salvadoran government would not acquiesce to the torture she fears. The

government is working to control gang violence and domestic violence, especially

through targeted prosecution of crimes of violence against women, though it

struggles doing so effectively and consistently.

Accordingly, “a reasonable adjudicator would [not] be compelled to

conclude” from the record that the BIA’s determinations were erroneous. 8 U.S.C.

§ 1252(b)(4)(B).

PETITION FOR REVIEW DENIED.