Chavez v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANA CAROLINA CHAVEZ, No. 22-345
Agency No.
Petitioner, A206-622-017
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2023 **
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District
Judge.***
Petitioner Ana Carolina Chavez, a native and citizen of El Salvador,
timely seeks review of a Board of Immigration Appeals’ (“BIA”) order
dismissing her appeal from an immigration judge’s (“IJ”) denial of asylum,
*
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 John R. Tunheim, United States District Judge for
the District of Minnesota, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
(“CAT”). “Our review is limited to the BIA’s decision except [when] the IJ’s
opinion is expressly adopted.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831
(9th Cir. 2022). We review for substantial evidence the agency’s factual
findings underlying the denials of asylum, withholding of removal, and CAT
protection. Id. We review de novo due process challenges to immigration
decisions. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). We deny the
petition.
1. We assume, without deciding, that “young women in El Salvador” and
“young women in El Salvador who have been abused by their domestic
partners” are cognizable particular social groups. But substantial evidence
supports the agency’s finding that the harm that Petitioner suffered in the past
and that she fears in the future is not “on account of” her membership in either
proposed group. See Ayala v. Holder, 640 F.3d 1095, 1097–98 (9th Cir. 2011)
(per curiam) (holding that substantial evidence supported the finding that any
persecution was not “on account of” the petitioner’s membership in a particular
social group, a required element of the claim for relief). Substantial evidence
supports the agency’s finding that, instead, Petitioner’s domestic partner harmed
her because of their relationship and made threats after she left him, purely
personal motive. See Pagayon v. Holder, 675 F.3d 1182, 1191 (9th Cir. 2011)
(per curiam) (“A personal dispute is not, standing alone, tantamount to
persecution . . . .”). Accordingly, Petitioner’s asylum and withholding claims
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fail.
2. Substantial evidence also supports the agency’s finding that Petitioner
is not likely to face torture by, or “with the consent or acquiescence of, a public
official . . . or other person acting in an official capacity” if returned to El
Salvador. 8 C.F.R. § 1208.18(a)(1). Although Petitioner claims that the police
failed to protect her after she filed a report against her partner, “a general
ineffectiveness on the government’s part to investigate and prevent crime will
not suffice to show acquiescence.” Andrade-Garcia v. Lynch, 828 F.3d 829,
836 (9th Cir. 2016). Therefore, Petitioner’s claim for CAT protection also fails.
3. Finally, Petitioner argues that the BIA’s process was fundamentally
unfair and therefore violated her constitutional rights because the BIA
“streamlined” the case by allowing a single member of the BIA to affirm the
IJ’s decision. See 8 C.F.R. § 1003.1(e) (authorizing a single member of the
BIA to affirm, with or without opinion, an IJ’s decision). Although a single
member of the BIA affirmed the IJ’s denial, the appellate IJ issued a written
decision that provided a full explanation for denying Petitioner’s claims.
Section 1003.1(e) explains how the agency manages its cases and that “[u]nless
a case meets the standards for assignment to a three-member panel . . . , all
cases shall be assigned to a single Board member for disposition.” 8 C.F.R.
§ 1003.1(e); see also 8 C.F.R. § 1003.1(e)(6) (listing the circumstances under
which a three-member panel is required). Petitioner has not shown that this
case meets that standard and therefore fails to explain how the “outcome of the
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proceeding may have been affected by the alleged violation.” Zolotukhin v.
Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (emphasis omitted) (citation and
internal quotation mark omitted). Because Petitioner fails to show that she was
prejudiced when the BIA followed its standard procedure, her procedural due
process claim fails.
PETITION DENIED. The stay of removal will remain in place until
the mandate issues.
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