Rivera v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO HUMBERTO RIVERA, No. 21-1336
Petitioner, Agency No. A094-303-009
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 21, 2023**
San Francisco, California
Before: SCHROEDER, CALLAHAN, and BUMATAY, Circuit Judges.
Mario Humberto Rivera, a citizen and national of El Salvador, petitions for
review of the Board of Immigration Appeals (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). We review the denial of
*
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).
asylum, withholding of removal, and CAT claims for substantial evidence, and
“must uphold the agency determination unless the evidence compels a contrary
decision.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. Substantial evidence supports the agency’s conclusion that Rivera was
competent to participate in immigration proceedings. See generally Matter of M-A-
M, 25 I. & N. Dec. 474, 479–80 (B.I.A. 2011); Salgado v. Sessions, 889 F.3d 982,
987–89 (9th Cir. 2018). Despite his recent car crash and reported memory problems,
the record indicates that Rivera was able to fully understand and follow the
proceedings. And “even though safeguards are only required when an IJ concludes
an applicant is incompetent,” Salgado, 889 F.3d at 988, the IJ ensured Rivera had
the types of safeguards contemplated in M-A-M, such as access to counsel. M-A-M,
25 I. & N. Dec. at 481–83. Indeed, his counsel stated it was unnecessary to revisit
Rivera’s direct examination, and the government stated that his lack of memory
about specific dates did not matter, as no claims relied on precise date
determinations. “[F]orgetting things and having bad memory” do not establish
mental incompetency. Salgado, 889 F.3d at 988.
2. Substantial evidence also supports the denial of asylum and withholding of
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removal. 1 See Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020) (“An applicant
who fails to satisfy the lower standard for asylum necessarily fails to satisfy the more
demanding standard for withholding of removal.”). Both claims depend on a finding
that Rivera faced past persecution, and that he was harmed or threatened with harm
on account of a protected ground, such as being a member of a particular social
group. See Plancarte Sauceda v. Garland, 23 F.4th 824, 833 (9th Cir. 2022).
First, substantial evidence supports the agency’s determination that Rivera did
not suffer harm rising to the level of past persecution. Rivera testified that in 1995,
the MS-13 gang attempted to recruit him. Although the gang members did not say
so, Rivera believes they were recruiting him because he had military training. He
was given two options: join or pay a monthly extortion fee under threat against his
family. After declining the invitation, Rivera moved from San Vincente to San
Salvador to seek work so he could pay the fee. The gang didn’t contact him again
but sent notes to his sister asking for his whereabouts and set fire to her kitchen to
intimidate the family. Rivera left El Salvador for the United States in 1998. He
testified that once the gang learned he was in the United States, they increased the
fee to $300 per month and threw rocks at his home in El Salvador. He has paid the
1
Because the BIA affirmed the IJ’s decision regarding Rivera’s asylum and
withholding claims, it did not reach the issue of Rivera’s one-year deadline to file
an application for asylum. Likewise, since we only consider the grounds relied upon
by the BIA, whether Rivera’s application was timely falls outside the scope of our
review. See Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
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fee for 18 years, but fears that he won’t be able to afford it if returned to El Salvador
and that he would be harmed or killed as a result by MS-13.
The record does not compel the conclusion that these threats rose to the level
of past persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006)
(persecution is “an extreme concept” that does not encompass all negative treatment
that society may regard as “offensive”). Rivera suffered unfulfilled threats and
extortion demands, but no physical harm. And his circumstances, while serious,
involve less physical harm than circumstances that still did not compel a finding of
past persecution. See, e.g., Gu, 454 F.3d at 1019–21 (brief detention, beating, and
interrogation); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995) (detention and
beating). And without a finding of past persecution, Rivera is not entitled to a
presumption of future persecution, see 8 C.F.R. § 1208.13(b)(1), and he failed to
provide any other evidence that he would be subject to future persecution.
Second, substantial evidence supports the agency’s determination that Rivera
failed to establish a nexus to a protected ground. On the one hand, Rivera testified
that he believed he was recruited because of his military experience. On the other
hand, he fears returning to El Salvador because he won’t have a way to pay the
monthly extortion fee, and as a result, MS-13 will harm him and his family. He
testified that MS-13 would “always try and recruit people” in his community, and
that many people there faced similar threats, extortion, and harm. This record does
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not compel a finding that Rivera will be persecuted on account of a protected class.
And Rivera’s fear of “random violence by gang members bears no nexus to a
protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).
And third, substantial evidence supports the IJ’s determinations that Rivera
failed to identify a proposed particular social group in which he claims membership,
and that the group he insinuated—“former military, with skills to further criminal
activity”—was not cognizable. Rivera did not clearly define the proposed social
group during his proceedings before the IJ, but the IJ nonetheless considered whether
it was cognizable. To be cognizable, a proposed social group must exist
independently of harm and risk of being persecuted. Diaz-Reynoso v. Barr, 968 F.3d
1070, 1077 (9th Cir. 2020). We have previously rejected similar proposed social
groups, suggesting that substantial evidence supported the BIA’s conclusions that
these groups lacked particularity and social distinction. See, e.g., Arriaga-
Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (rejecting group based on
former military service); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009),
abrogated on other grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th
Cir. 2013) (rejecting group of young men recruited by MS-13 who refused to join).
And without a cognizable group, Rivera cannot demonstrate that he would be
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persecuted on account of his membership in it. 2
3. Substantial evidence supports the denial of CAT protection because Rivera
failed to show it is more likely than not he will be tortured by or with the consent of
the government if returned to El Salvador. See Tzompantzi-Salazar v. Garland, 32
F.4th 696, 704 (9th Cir. 2022). Nothing in the record compels a finding that Rivera
has suffered torture or is likely to if returned. Rivera’s family continues to live there
without harm, and Rivera provided no evidence that he could not relocate within El
Salvador. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (lack of past
torture and evidence about safe internal relocation are “[r]elevant considerations”).
PETITION DENIED.
2
Rivera correctly points out that the IJ cited a now-abrogated BIA decision in its
decision. But in affirming the IJ’s decision, the BIA specifically stated that it did
not rely on the vacated decision. Instead, the BIA relied on Zetino, 622 F.3d at 1016.
Additionally, the agency’s reference to Matter of A-B-, 27 I&N Dec. 316 (AG 2018),
for the proposition that “[s]ocial groups defined by their vulnerability to private
criminal activity likely lack the particularity required” does not require remand
because the BIA applied pre-A-B- precedent in determining whether his class was
cognizable.
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