Jorge Alvarenga-Rivera v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ALVARENGA-RIVERA, No. 18-71895
Petitioner, Agency No. 200-958-972
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an
Immigration Judge’s Decision,
Agency No. 200-958-972
Submitted March 3, 2020**
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and CHRISTENSEN,***
District Judge.
*
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 Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
Jorge Alvarenga-Rivera challenges the Immigration Judge’s (“IJ”) negative
reasonable fear determination after reinstatement of his 2016 order of removal. 8
U.S.C. § 1231(a)(5), (b)(3); 8 C.F.R. §§ 241.8(e), 1241.8(e). We have jurisdiction
under 8 U.S.C. § 1252(a)(1), (5). See Ayala v. Sessions, 855 F.3d 1012, 1017–18
(9th Cir. 2017). We deny his petition.
1. Substantial evidence supports the IJ’s determination that Alvarenga-
Rivera is not eligible for withholding of removal because he did not demonstrate
that he fears harm upon return to Honduras based on a protected ground.
Alvarenga-Rivera’s testimony that he was targeted by MS-13 for resisting their
recruitment efforts is not an imputed political opinion. See, e.g., Ramos-Lopez v.
Holder, 563 F.3d 855, 862 (9th Cir. 2009), abrogated on other grounds
by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). Alvarenga-Rivera’s
testimony that gang members watched him walk to church and attacked two of his
cousins does not compel us to conclude that the IJ erred in finding no evidence that
MS-13 targeted Alvarenga-Rivera because of his religious beliefs or family/kinship
ties.
2. Substantial evidence supports the IJ’s decision that Alvarenga-Rivera is
not eligible for relief under the Convention Against Torture because he failed to
show the government’s acquiescence to gang violence in the region. Alvarenga-
Rivera’s testimony that local police are reluctant to investigate gang-related crimes
2
out of fear for their safety does not indicate police corruption; it shows the police
are “aware of torture but powerless to stop it.” Garcia-Milian v. Holder, 755 F.3d
1026, 1033–34 (9th Cir. 2014) (quoting Mouawad v. Gonzales, 485 F.3d 405, 413
(8th Cir. 2007)). We also reject Alvarenga-Rivera’s argument that the IJ should
have taken judicial notice of the U.S. Department of State’s Country Report for
Honduras, as he never referenced or submitted that report to the IJ. Cf. Aguilar-
Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (holding that the BIA’s failure
to consider country-condition evidence that was “included in the record without
objection” is reversible error).
3. Reviewing de novo, Perez-Lastor v. I.N.S., 208 F.3d 773, 777 (9th Cir.
2000), Alvarenga-Rivera’s due process claim fails. Even assuming that the
framework set forth in Matter of M-A-M, 25 I. & N. Dec. 474 (BIA 2011) applies
in reasonable-fear review proceedings, the record does not present indicia of
mental incompetence. During his interview, at which he was represented by
counsel, Alvarenga-Rivera experienced “health-related complaints . . . and poor
memory[,]” neither of which impeded his “rational and factual understanding of
the nature and object of the proceedings,” id. at 477–79, or otherwise violated his
right to due process.
Alvarenga-Rivera’s petition is therefore DENIED.
3