Maria Ramos-Portillo v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED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,
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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
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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.
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