DINORA RIVAS-DE PEREZ V. MERRICK GARLAND, No. 20-71128 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 7 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DINORA YANIRA RIVAS DE PEREZ, Petitioner, No. U.S. COURT OF APPEALS 20-71128 Agency No. A209-417-374 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 5, 2022** San Francisco, California Before: WATFORD and SANCHEZ, Circuit Judges, and BENITEZ,*** 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 Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation. Page 2 of 4 Dinora Yanira Rivas de Perez, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the decision of an immigration judge (“IJ”) denying her motion for a continuance and her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition. 1. A continuance may be granted for “good cause shown.” 8 C.F.R. § 1003.29. We review an IJ’s decision to grant or deny a continuance for abuse of discretion. Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015). Rivas de Perez requested a continuance because the Attorney General decided Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), approximately ten days before her statement of particular social group was due. The IJ did not abuse his discretion in finding that Matter of A-B- was not relevant to Rivas de Perez. The decision addresses whether victims of domestic abuse constitute a particular social group, Matter of A-B-, 27 I. & N. Dec. at 319, while Rivas de Perez’s application was based on an attack and threats by people with whom Rivas de Perez had no direct relationship. Rivas de Perez’s counsel also argued that Matter of A-B- heightened the burden in asylum claims based on harm perpetrated by private actors. But she did not articulate how additional time would aid her in responding to that change. The IJ properly noted that Rivas de Perez’s counsel had ample time to explore all possible bases for relief before Matter of A-B- was decided. Thus, the IJ did not abuse his discretion by Page 3 of 4 denying the motion for a continuance. 2. Substantial evidence supports the agency’s denial of asylum and withholding of removal. Rivas de Perez was attacked by Griselda, the exgirlfriend of Rivas de Perez’s boyfriend. The IJ’s conclusion that this attack bore no nexus to a particular social group is supported by substantial evidence. Rivas de Perez testified that Griselda attacked her because she didn’t “want [the boyfriend] to start a new life with someone else.” Thus, as the IJ found, the attack was not a form of persecution, but a “personal dispute.” Any other harm Rivas de Perez endured was not severe enough to rise to the level of persecution. After Rivas de Perez reported the attack and testified in Griselda’s prosecution, Griselda’s gang-affiliated brothers threatened Rivas de Perez with death. Rivas de Perez claims she was persecuted on account of her status as a witness. But even assuming that Rivas de Perez has articulated a cognizable particular social group that was properly exhausted below, the threats in question did not amount to persecution. “Unfulfilled threats are very rarely sufficient to rise to the level of persecution.” Hussain v. Rosen, 985 F.3d 634, 647 (9th Cir. 2021). That is particularly true when no additional mistreatment accompanies the threats. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). For the same reason, Rivas de Perez’s fear of future persecution is too speculative to support relief. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Page 4 of 4 Cir. 2005). 3. Substantial evidence also supports the agency’s denial of CAT protection. To establish eligibility for CAT relief, Rivas de Perez must demonstrate that she is more likely than not to suffer torture at the hands of public officials or with the acquiescence of public officials if returned to El Salvador. Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Law enforcement responded to Rivas de Perez’s report of violence and prosecuted her attacker. She never informed any public official that she sought reconciliation of the charges against her attacker in response to threats on her life. As such, substantial evidence supports the agency’s finding of no acquiescence.1 Although Rivas de Perez offers evidence of generalized corruption in El Salvador, that evidence does not compel the conclusion that she would face a particularized probability of future torture if removed to El Salvador. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam). PETITION FOR REVIEW DENIED. 1 The evidence does not compel us to conclude that the El Salvadoran court’s decision to downgrade the classification of Griselda’s crime amounted to acquiescence to torture. To the contrary, the court relied on expert testimony that Rivas de Perez’s injuries were not life-threatening in adjusting the charges, and Rivas de Perez provides no evidence that the attack endangered her life or that the court applied the wrong standard under El Salvadoran law.
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