Ileana Rivera Medina v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILEANA LUCELY RIVERA MEDINA, No. 18-73306
Petitioner, Agency No. A204-643-462
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2021**
Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District
Judge.
Ileana Lucely Rivera Medina, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals (BIA) final removal order denying
*
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 Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
her applications for withholding of removal and Convention Against Torture
(CAT) relief. We have jurisdiction under 8 U.S.C. § 1252. We review denials of
withholding of removal and CAT relief for substantial evidence, and we may grant
this petition only if “the evidence not only supports a contrary conclusion, but
compels it.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016).
1. Petitioner first argues that the BIA erred in denying her motion to remand
her immigration case for termination. Here, she contends that the Immigration
Judge (IJ) who presided over her case lacked jurisdiction because the notice to
appear (NTA) omitted the date and time of her initial removal hearing.
Although Petitioner was served with an NTA that omitted the date and time
of her initial removal hearing, it is undisputed Petitioner had actual notice of the
hearing date and time through a subsequent notice of hearing that she received.
The IJ had jurisdiction over Petitioner’s removal proceedings notwithstanding the
absence of the hearing date and time from the initial NTA. See Karingithi v.
Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019).
2. Petitioner next contends that the BIA improperly denied her application for
withholding of removal when it decided that her proffered particular social group
was not cognizable under the Immigration and Naturalization Act (INA).
“[A] particular social group must exist independently of the harm asserted in
an application for asylum or statutory withholding of removal . . . and individuals
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in the group must share a narrowing characteristic other than their risk of being
persecuted.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1081 (9th Cir. 2020) (quoting
Matter of A-B-, 27 I. & N. Dec. 316, 334–35 (A.G. 2018)) (internal quotation
marks and citations omitted).
Here, Petitioner claims past persecution on account of her membership in the
particular social group of “women fleeing domestic abuse.” The BIA permissibly
held that Petitioner failed to demonstrate her particular social group exists
independently of the past persecution set out in her application for withholding of
removal. See id.
3. Petitioner further insists the BIA wrongly denied her withholding of removal
on the basis of erroneous factual findings that her membership in the particular
social groups of “family” and “women fleeing domestic abuse” is not a reason for
the harm she fears in Mexico. Petitioner alternatively asks us to revive her
application for withholding of removal because the BIA made a groundless factual
finding that she submitted insufficient evidence that the Mexican government will
be unable or unwilling to protect her from harm.
The record does not compel any conclusions contrary to those reached by
the BIA, so we cannot reverse the BIA’s denial of Petitioner’s request for
withholding of removal in this case. See Budiono v. Lynch, 837 F.3d 1042, 1046
(9th Cir. 2016) (quoting Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th
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Cir. 2011)) (“We review [the BIA’s] factual findings for substantial evidence;
factual findings should be upheld ‘unless the evidence compels a contrary
result.’”).
4. Petitioner asks this Court to remand her CAT claim because the BIA failed
to consider her country conditions evidence. Alternatively, Petitioner asks us to
reverse the BIA’s rejection of her CAT claim because this evidence compels a
conclusion that Petitioner will be tortured with the Mexican government’s consent
or acquiescence.
However, the record does not support her contentions. The BIA determined
that Petitioner’s country conditions evidence “does not establish that government
authorities would be unwilling or unable to protect her.” See Garcia-Milian v.
Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware
of a particular crime, but failed to bring the perpetrators to justice, is not in itself
sufficient to establish acquiescence in the crime. Instead, there must be evidence
that the police are unable or unwilling to oppose the crime.”). The BIA’s order
reflects the BIA sufficiently considered country conditions in connection with
Petitioner’s withholding of removal and CAT claims. See Najmabadi v. Holder,
597 F.3d 983, 990 (9th Cir. 2010) (explaining that the BIA “does not have to write
an exegesis on every contention”); Larita-Martinez v. INS, 220 F.3d 1092, 1096
(9th Cir. 2000) (stating that the BIA presumably considers all relevant evidence
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absent an indication to the contrary). Finally, Petitioner’s proffered country
conditions evidence does not compel us to conclude that she will be tortured with
the Mexican government’s consent or acquiescence. See Budiono, 837 F.3d at
1046.
PETITION DENIED.
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