Rivas-Yanes v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2024
• Docket: 22-1149
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIN ANTONIO RIVAS- No. 22-1149 YANES; BIRDI DE LOS ANGELES Agency Nos. RIVAS-QUEZADA; DARLIN ARACELY A209-906-074 RIVAS-QUEZADA; VERONICA A209-906-075 ARACELI QUEZADA-CHACON, A209-986-154 A209-986-153 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 29, 2024 **

Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.

* 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). Edwin Antonio Rivas-Yanes (“Rivas”), a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) decision

dismissing his appeal of an immigration judge’s (“IJ”) decision denying his

applications for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). His wife and two daughters are derivative beneficiaries

on Rivas’s asylum application. “Where, as here, the BIA cites [Matter of Burbano,

20 I. & N. Dec. 872 (BIA 1994),] and also provides its own review of the evidence

and law, we review both the IJ’s and the BIA’s decisions.” Ruiz-Colmenares v.

Garland, 25 F.4th 742, 748 (9th Cir. 2022) (citation omitted). “We review

questions of law de novo and the agency’s factual findings for substantial

evidence.” Id. (internal quotation marks and citation omitted). “Under the

substantial evidence standard, administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.” Id.

(citation omitted). As the parties are familiar with the facts, we do not recount

them here. We deny the petition.

1. Asylum applicants must demonstrate “persecution or a well-founded fear

of persecution on account of [a protected ground],” also known as the nexus

requirement. Garcia v. Wilkinson, 988 F.3d 1136, 1142-43 (9th Cir. 2021)

(quoting 8 U.S.C. § 1101(a)(42)(A)); see also Reyes v. Lynch, 842 F.3d 1125, 1132

n.3 (9th Cir. 2016). Applicants “must prove causal connection” by direct or

2 22-1149 circumstantial evidence that the persecution was on account of a protected ground.

Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir. 1997). Membership in a

particular social group and political opinion are two examples of protected

grounds. Id. at 1486 (citing 8 U.S.C. § 1101(a)(42)(A)).

Substantial evidence supports the agency’s denial of asylum based on its

determination that Rivas failed to establish a nexus between past or future

persecution and a protected ground. After Rivas brought his cousin, a member of

the 18th Street (“18th St.”) gang, into the rival territory of the Mara Salvatrucha

(“MS-13”) gang, Rivas’s cousin was shot and killed, and Rivas was grazed by a

bullet during the exchange. Regarding subsequent threats made by MS-13, Rivas

testified that MS-13 sought revenge because he brought a rival gang member

(Rivas’s cousin) into their territory. Regarding subsequent threats made by 18th

St., Rivas testified that 18th St. sought revenge because he was responsible for

bringing his cousin into MS-13 territory, resulting in his cousin’s death. However,

actions based on revenge or personal retribution alone do not satisfy the nexus

requirement. See Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir. 2001)

(holding that purely personal retribution is not persecution on account of a

protected ground).

Because substantial evidence supports the agency’s nexus determination, we

do not reach any other ground for denying Rivas’s asylum claim, including the

3 22-1149 BIA’s determination that Rivas waived his proffered particular social group before

the IJ.

2. Withholding of removal applicants must demonstrate that “a cognizable

protected ground is ‘a reason’ for future persecution.” Garcia, 988 F.3d at 1146

(citation omitted).

Substantial evidence supports the agency’s denial of withholding of removal

because Rivas failed to establish any nexus between the alleged persecution and a

protected ground. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1018 (9th Cir.

2023) (noting that the nexus standard required for withholding of removal is lower

than for asylum, but when the petitioner has not shown “any nexus whatsoever,”

both claims fail).

3. CAT applicants must demonstrate that “it is more likely than not that he

or she would be tortured if removed” by or with the acquiescence of government

officials. Hernandez v. Garland, 52 F.4th 757, 769 (9th Cir. 2022) (citations

omitted).

Substantial evidence supports the agency’s denial of CAT relief because

Rivas did not allege harm or threats by a government official in El Salvador, nor

did he establish that any government official would consent or acquiesce in his

torture. See id. at 770 (“[A] general ineffectiveness on the government’s part to

4 22-1149 investigate and prevent crime will not” suffice to show acquiescence. (citation

omitted)).

4. The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION DENIED.

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