Crispina Jimenez Rivera v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISPINA JIMENEZ RIVERA; YOHANA No. 17-71290
JASLIN MURILLO JIMENEZ,
Agency Nos. A206-680-667
Petitioners, A206-680-668
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 2, 2020**
Pasadena, California
Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.
Petitioners Crispina Jimenez Rivera and Yohana Jaslin Murillo Jimenez are
citizens of Mexico who unlawfully entered the United States. Rivera applied for
*
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 Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
asylum, withholding of removal, and relief under CAT, with her daughter,
Jimenez, claiming derivative relief. The Immigration Judge (the “IJ”) denied
relief, and the Board of Immigration Appeals (the “BIA”) affirmed. Petitioners
now seek review of the BIA’s decision as to Rivera’s asylum and CAT claims.1
We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s
determinations of questions of law de novo and findings of fact for substantial
evidence. Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013). The BIA’s
findings of fact “are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
The BIA correctly denied Rivera’s claim for asylum. An asylum applicant
must establish that she is subject to persecution on one of several grounds,
including her membership in a cognizable particular social group. 8 U.S.C.
§§ 1101(a)(42), 1158(b)(1)(A). Rivera claims that she was persecuted based on
her membership in two social groups: 1) Mexican women unable to leave their
relationships and 2) wealthy Mexican landowners.
However, the record demonstrates that Rivera is not a Mexican woman
unable to leave her relationship because she left her husband several times. While
her experiences could conceivably constitute a cycle of abuse, there is insufficient
1
Because the parties are familiar with the facts of Rivera’s Petition, we do not
discuss them at length here.
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evidence to compel a finding contrary to the BIA’s determination that Rivera was
able to leave her relationship.
The BIA also correctly denied Rivera’s claim for asylum as a wealthy
Mexican landowner. On appeal, Rivera argues that the BIA improperly focused on
whether homeownership, rather than landownership, was a cognizable social
group, because it was not an issue addressed by the IJ, and that she was not put on
notice that such an issue needed to be addressed before the BIA. Rivera claims
that, as a result, “the Board erred in failing to address Petitioner’s arguments that
she was a member of [her proposed particular social group].”
However, the BIA actually held that Rivera failed to establish both that her
proposed social group of wealthy landowners in Mexico was cognizable and that
she was a member of that group. In other words, contrary to Rivera’s argument,
the BIA did address the IJ’s finding that Rivera was not a member of a cognizable
social group. Rivera does not dispute the merits of that finding and has waived any
such arguments. See Rizk v. Holder, 629 F.3d 1083, 1091 n. 3 (9th Cir. 2011).
The BIA also correctly held that Rivera did not qualify for withholding of
removal under CAT. To qualify for relief from removal under CAT, an applicant
must establish that “it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is
“an extreme form of cruel and inhuman treatment” that includes “severe pain or
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suffering.” Id. §§ 208.18(a)(1)–(2).
Rivera does not point to any evidence of past torture, which is “ordinarily
the principal factor” in determining the potential for future torture. Edu v. Holder,
624 F.3d 1137, 1145 (9th Cir. 2010). While Rivera was abused repeatedly by her
husband and threatened with murder, the facts do not rise to the level of extreme
treatment needed to qualify as torture. See Kumar v. Gonzales, 444 F.3d 1043,
1047, 1055–56 (9th Cir. 2006). Furthermore, none of the gang violence that
Rivera’s family experienced was directed at her, but rather was received by her
children. Rivera also does not face a significant risk of future torture, as she can
live away from her husband and further gang violence upon her return to Mexico.
Therefore, substantial evidence supports the BIA’s finding that it is not more likely
than not that Rivera will be tortured if she returns to Mexico, and the BIA properly
denied her request for relief under CAT.
PETITION DENIED.
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