FILED
NOT FOR PUBLICATION
OCT 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLADIS AMANDA HERRERA- No. 18-73505
PERDOMO; et al.,
Agency Nos. A209-156-527
Petitioners, A209-156-528
A209-156-529
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2020**
Seattle, Washington
Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** 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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Petitioners Gladis Amanda Herrera-Perdomo and her two minor children
petition for review of the Board of Immigration Appeals’ (BIA) order dismissing
their appeal of an Immigration Judge’s decision denying asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a). We review de novo the BIA’s
determinations on questions of law and mixed questions of law and fact. Cordoba
v. Holder, 726 F.3d 1106, 1113 (9th Cir. 2013). We review for substantial
evidence the BIA’s factual findings. Bringas-Rodriguez v. Sessions, 850 F.3d
1051, 1059 (9th Cir. 2017). We deny the petition in part and dismiss in part.
1. Initial notices to appear need not include the time and date of the removal
hearing to vest the Immigration Court with jurisdiction. Karingithi v. Whitaker,
913 F.3d 1158, 1159–62 (9th Cir. 2019). Pereira v. Sessions, 138 S. Ct. 2105
(2018) simply has no application to claims arising from these circumstances.
Karingithi, 913 F.3d at 1161. We deny petitioners’ claim-processing argument
because it was not timely raised. See United States v. Sadler, 480 F.3d 932, 940
(9th Cir. 2007) (“Absent a timely and otherwise appropriate invocation of an
inflexible but not jurisdictional claim-processing rule, we are not obliged to
enforce the rule.”).
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2. The record shows that Herrera-Perdomo twice moved out of her in-laws’
home where she lived with her husband; she only cohabitated with her husband for
a year at most; and there was no evidence that her husband or his family tried to
prevent her from leaving. Further, she testified that her husband did not provide
financial support for their children and that she chose not to pursue a divorce due
to the cost. Substantial evidence supports the BIA’s determination that Herrera-
Perdomo did not establish she was unable to leave her relationship. Accordingly,
she did not establish that she was a member of the proposed social group “married
Honduran women who are unable to leave their relationship.” We need not reach
whether the proposed social group is cognizable.
3. Substantial evidence supports the BIA’s conclusion that petitioners failed
to show that “witnesses who report domestic violence” is a cognizable particular
social group. “‘Social distinction’ should be determined through a case-by-case,
‘evidence-based inquiry as to whether the relevant society recognizes [the]
proposed social group,’” Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir.
2020) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)), and the
record here contains no evidence tending to show that Honduran society views
“witnesses who report domestic violence” as a distinct social group.
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4. Petitioners failed to exhaust claims relating to the other social groups
they propose for the first time before this court, and we dismiss this portion of the
petition for lack of jurisdiction. 8 U.S.C. § 1252(d)(1); Abebe v. Mukasey, 554
F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding that a petitioner
fails to exhaust claims not raised in a brief before the BIA).
5. The BIA’s denial of CAT relief was supported by substantial evidence
because petitioners did not show that the Honduran government would consent or
acquiesce to any torture of petitioners. Zheng v. Ashcroft, 332 F.3d 1186, 1188
(9th Cir. 2003) (quoting 8 C.F.R. 208.18(a)(1)). The record evidence shows that
Herrera-Perdomo successfully obtained a restraining order against her husband,
she went to court to force her husband to pay off credit card debt he had incurred in
her name, and she initiated but did not complete legal action to force her husband
to pay child support. On this record, the BIA did not err by concluding that
petitioners did not show that the government would consent or acquiesce to torture.
PETITION DENIED IN PART AND DISMISSED IN PART.
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