Reyna Palacios-Palacios v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2020
• Docket: 17-73043
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REYNA DE LOS ANGELES PALACIOS- No. 17-73043 PALACIOS, et al.,

Petitioners, Agency No. A202-123-889 A202-123-890 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted May 15, 2020** San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and RAKOFF,*** District Judge.

Petitioner Reyna de Los Angeles Palacios-Palacios (“Palacios-Palacios”)

* 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 Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. and her minor son, natives and citizens of El Salvador, seek review of the decision

of the Board of Immigration Appeals (“BIA”) denying asylum, withholding from

removal, and protection under the Convention Against Torture (“CAT”).1 We have

jurisdiction under 8 U.S.C. § 1252 and review both the Immigration Judge’s (“IJ”)

and the BIA’s decisions “[w]here, as here, the BIA cites Burbano and also

provides its own review of the evidence and law.” Ali v. Holder, 637 F.3d 1025,

1028 (9th Cir. 2011).

1. We review denials of asylum and withholding of removal for substantial

evidence, and to reverse we “must determine that the evidence not only supports a

contrary conclusion, but compels it.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184

(9th Cir. 2016) (citation omitted). Substantial evidence supports the BIA’s

conclusion that Palacios-Palacios is not eligible for asylum.

First, while Palacios-Palacios received several death threats and these types

of threats alone can constitute persecution, the evidence here does not compel a

finding that Palacios-Palacios suffered past persecution. See Duran-Rodriguez v.

Barr, 918 F.3d 1025, 1028-29 (9th Cir. 2019) (noting that “cases with threats

alone, particularly anonymous or vague ones, rarely constitute persecution”).

Second, Palacios-Palacios argues she is eligible for asylum because she has

1 Palacios-Palacios’s minor son has a derivative asylum claim through Palacios- Palacios; his claim rises or falls with hers. See 8 U.S.C. § 1158(b)(3). 2 a well-founded fear of future persecution on account of her membership in the

particular social group: “Salvadoran women who are single mothers with children,

who own a small business in rural El Salvador, and whose partners are residing in

the United States.” We review de novo whether a particular social group exists and

for substantial evidence that “a specific society recognizes a social group.” Conde

Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020). Palacios-Palacios “must

show that the proposed social group is ‘(1) composed of members who share a

common immutable characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question.’” Id. (quoting Matter of M-E-V-G-, 26 I. &

N. Dec. 227, 237 (2014)). Based on the record, substantial evidence supports the

BIA’s finding that Salvadoran society does not recognize Palacios-Palacios’s

proposed social group. Palacios-Palacios has not provided any evidence that

Salvadoran society generally recognizes, as a distinct social group, small business

owners who are women. See Conde Quevedo, 947 F.3d at 1242-43. Thus, the BIA

did not err in concluding that Palacios-Palacios failed to establish membership in a

cognizable particular social group.

Because Palacios-Palacios failed to show “membership in a particular social

group” and has not based her asylum claim on any other protected ground, her

asylum claim fails. 8 U.S.C. § 1101(a)(42). Similarly, Palacios-Palacios is not

eligible for withholding from removal because withholding applicants, like those

3 seeking asylum, must prove a nexus between persecution and a protected ground,

which she has failed to do. 8 U.S.C. § 1231(b)(3).

2. We review denial of CAT relief for substantial evidence. Silva-Pereira, 827

F.3d at 1184. Substantial evidence supports the BIA’s determination that Palacios-

Palacios is not eligible for CAT relief. She has not shown a clear probability of

torture if removed to El Salvador by either government officials or private actors

with government acquiescence. Police refusal to investigate the death threats and

extortion Palacios-Palacios reported does not “compel the conclusion that the

police acquiesced in the attack” and thus does not support the claim of future

acquiescence in future attacks. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034

(9th Cir. 2014).

3. “We review an IJ’s decision to deny a request for continuance for abuse of

discretion” and apply a non-exhaustive four-factor test to determine whether the IJ

abused its discretion. See Cui v. Mukasey, 538 F.3d 1289, 1290, 1292 (9th Cir.

2008) (noting the factors are “(1) the importance of the evidence, (2) the

unreasonableness of the immigrant’s conduct, (3) the inconvenience to the court,

and (4) the number of continuances previously granted”). The IJ did not abuse its

discretion because three of the four factors favor the government.

The first factor favors Palacios-Palacios. She sought a continuance to find an

expert to support her proposed social group, and the BIA denied her claim for

4 asylum based on its finding that Palacios-Palacios’s proposed social group was not

cognizable. The potential evidence offered by the expert could have been

important. The second factor favors the government. Palacios-Palacios has not

explained why she could not find the expert prior to the hearing. Her claim rested

on her proposed social group, she was represented by counsel the entire time, and

she had approximately two years before the hearing to locate an expert. The third

factor likewise favors the government: the inconvenience to the court was more

than minor. Palacios-Palacios requested the continuance at the end of the merits

hearing, after the IJ was ready to rule. The IJ would have had to reschedule the

rehearing for a later date and devote additional resources to the case. Cf. id. at 1295

(finding no inconvenience to the court because the time was already reserved for a

merits hearing). The fourth factor also favors the government because Palacios-

Palacios was previously granted several continuances to help her prepare her case.

Cf. id. (finding this factor favored petitioner because “the delays were a result of

the government’s requests and the IJ’s busy calendar”).

The petition for review is DENIED.