Rafael Capi-Esquivel v. Matthew Whitaker ( 2018 )

FILED
NOT FOR PUBLICATION
DEC 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL CAPI-ESQUIVEL, No. 15-73812
Petitioner, Agency No. A090-641-232
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 4, 2018**
Seattle, Washington
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Rafael Capi-Esquivel (“Capi”), a citizen of Mexico, petitions for review
of an Immigration Judge’s (“IJ”) decision affirming an asylum officer’s negative
*
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).
reasonable fear determination and reinstating a prior removal order. Capi also
argues that the IJ violated his right to due process. We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition.
1. Negative Reasonable Fear Determination
We review the IJ’s affirmance of the negative reasonable fear determination
for substantial evidence, reversing only if the record “compel[s]” a contrary
conclusion. Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018). The IJ
concluded that Capi lacked a reasonable fear of persecution based on a protected
ground and that he failed to establish a reasonable fear of torture with government
acquiescence. We affirm. Capi stated that the Caballeros Templarios threatened
and tried to extort him because he had recently returned from the United States and
because they thought he had money. We have held that neither category
constitutes a cognizable social group for withholding of removal purposes. See,
e.g., Bartolome, 904 F.3d at 814 (money); Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1228–29 (9th Cir. 2016) (money); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1151–52 (9th Cir. 2010) (returning from the United States). While a few of Capi’s
family members were also threatened by the cartel and we have recognized that a
family group is a cognizable social group—see Rios v. Lynch, 807 F.3d 1123, 1128
(9th Cir. 2015)—the record evidence does not compel a conclusion that Capi was
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targeted due to his family group membership. In addition, substantial evidence
supports the IJ’s affirmance of the determination that there was no reasonable fear
of torture with government acquiescence.
2. Due Process Challenge
We review questions of law, including due process challenges, de novo.
Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014); Cruz Rendon v. Holder,
603 F.3d 1104, 1109 (9th Cir. 2010). Capi argues that the IJ violated his right to
due process by failing to consider all the evidence and by issuing a three-line order
that failed to provide a reasoned explanation. We disagree. Capi has not overcome
the presumption that the IJ reviewed the evidence. See Fakhry v. Mukasey, 524
F.3d 1057, 1066 n.12 (9th Cir. 2008); Larita-Martinez v. I.N.S., 220 F.3d 1092,
1095–96 (9th Cir. 2000). The IJ stated that she reviewed all the evidence, and
there is nothing to indicate otherwise. Further, while short, the IJ’s order included
reasons for upholding the asylum officer’s decision.
PETITION DENIED.
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