Villanueva Carlos v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2024
• Docket: 23-130
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA GUADALUPE VILLANUEVA No. 23-130 CARLOS; ADALID ORTIZ Agency Nos. VILLANUEVA, A215-870-825 A215-870-826 Petitioners, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 27, 2024** Pasadena, California

Before: GRABER, IKUTA, and FORREST, Circuit Judges.

Petitioner Maria Guadalupe Villanueva Carlos, 1 a native and citizen of

* 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). 1 Petitioner’s underlying application for relief lists her minor son as a derivative beneficiary. The son’s application was based on the same experiences set forth in Petitioner’s application, so our analysis applies to both petitioners. Mexico, seeks review of the Board of Immigration Appeals’ (BIA) order affirming

the immigration judge’s (IJ) denial of relief from removal and declining to remand

her case for further competency proceedings and procedural safeguards. We review

the decisions of both the BIA and the IJ where, as here, the BIA adopts part of the

IJ’s reasoning. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014). We have

jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

1. Petitioner’s Competency. We review the BIA’s competency decision

for abuse of discretion. Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1182–83

(9th Cir. 2018). In immigration proceedings, petitioners are “presumed to be

competent and, if there are no indicia of incompetency in a case, no further inquiry

regarding competency is required.” Salgado v. Sessions, 889 F.3d 982, 987 (9th Cir.

2018) (quoting Matter of M-A-M-, 25 I. & N. Dec. 474, 474 (B.I.A. 2011)). “Indicia

of incompetency include ‘the inability to understand and respond to questions, the

inability to stay on topic, or a high level of distraction,’ as well as ‘evidence of

mental illness.’” Id. (quoting Matter of M-A-M-, 25 I. & N. Dec. at 479).

Petitioner argues that the BIA erred by not remanding her case for further

competency proceedings and procedural safeguards because she gave inconsistent

and inaccurate testimony about her date of birth and her age when her son was born.

We disagree. Following Petitioner’s inaccurate testimony, the IJ asked her a series

of questions to determine her competency and found that she was able to “understand

2 23-130 and respond to questions” and “stay on topic” and found no history of mental illness.

These findings are supported by the record, and “no further inquiry regarding

competency [was] required.” Id. (quoting Matter of M-A-M-, 25 I. & N. Dec. at 474).

In any event, the BIA stated that “assuming arguendo that the respondent was

mentally incompetent, she was represented by an attorney at her removal hearing,

which is the primary procedural safeguard against incompetency,” so any abuse of

discretion was harmless. See id. at 988 (noting procedural safeguards).

2. Adverse-Credibility Finding. Petitioner challenges the IJ’s adverse

credibility finding, even though the BIA assumed that Petitioner was credible and,

on de novo review, denied relief on other grounds. We may review only the reasons

on which the BIA relied; thus, the IJ’s adverse-credibility finding is not before us.

See Park v. Garland, 72 F.4th 965, 974 (9th Cir. 2023) (“When the BIA reviews the

IJ’s decision de novo, ‘our review is limited to the BIA’s decision except to the

extent that the IJ’s opinion is expressly adopted.’” (quoting Garcia v. Wilkinson, 988

F.3d 1136, 1142 (9th Cir. 2021))).

3. Petitioner’s Claims for Relief. “[W]e review the agency’s factual

determinations for substantial evidence.” Zuniga v. Garland, 86 F.4th 1236, 1239

(9th Cir. 2023).

First, substantial evidence supports the agency’s conclusion that Petitioner did

not suffer past persecution and could not establish a clear probability of future

3 23-130 persecution. Her encounters with El Diablo do not rise to the level of persecution

because Petitioner was threatened and pushed once, but never seriously physically

harmed. Sharma v. Garland, 9 F.4th 1052, 1061 (9th Cir. 2021) (“The first, and often

a significant consideration, is whether the petitioner was subject to significant

physical violence, and, relatedly, whether [she] suffered serious injuries that

required medical treatment.” (internal quotation marks and citation omitted)); see

also Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (no past

persecution where cartel members threatened to kill the respondent on two

occasions, including once while armed); Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000) (“Threats standing alone, however, constitute past persecution in only a small

category of cases, and only when the threats are so menacing as to cause significant

actual ‘suffering or harm.’” (quoting Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.

1997))).

Second, substantial evidence supports the agency’s finding that Petitioner’s

proposed particular social groups—(1) single Mexican females without male

protection; (2) Mexican women who refuse to be victims of sexual predation from

cartel members; (3) minor females without government protection; (4) minor

females without male protection; and (5) young women without male protection who

4 23-130 are seen as property—are not cognizable.2 See Gutierrez-Alm v. Garland, 62 F.4th

1186, 1199 (9th Cir. 2023) (stating particular-social-group standard). Petitioner

contends that these proposed social groups are cognizable because gender and

nationality are “immutable characteristic that cannot be changed” because, “[t]o the

gang members, she believes she was socially distinct.” But, to be cognizable, a

particular social group must be socially distinct with the society, not “merely within

a small gang.” Id. at 1199–2000. The proposed social groups are amorphous and

there is no evidence in the record that they are socially distinct. The existence of

laws against domestic violence does not make women a socially distinct social

group. Petitioner largely relies on her general status as a Mexican woman and fails

to provide a sufficient level of particularity, an explanation of the precise social

category she alleges she is a part of, or a legal analysis supporting the cognizability

of that social category.

Finally, substantial evidence supports the agency’s denial of relief under the

Convention Against Torture. Petitioner failed to establish either that she would

“more likely than not be tortured if removed” or that such torture would be “inflicted

by or at the instigation of or with the consent or acquiescence of a [Mexican] public

official or other person acting in an official capacity.” Macedo Templos v. Wilkinson,

2 Petitioner did not raise imputed political opinion before the BIA, and so has failed to exhaust this argument. See Umana Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023).

5 23-130 987 F.3d 877, 883 (9th Cir. 2021) (alteration in original) (citation omitted); 8 C.F.R.

§§ 1208.16(c)(2), 1208.18(a)(1). A government’s general ineffectiveness in

investigating and preventing crime does not suffice to show acquiescence to torture.

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

PETITION DENIED.

6 23-130