NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA DE LA PAZ CABEZAS FLORES, No. 18-70822
Petitioner, Agency No. A205-852-461
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2020**
San Francisco, California
Before: HAWKINS, N.R. SMITH, and R. NELSON, Circuit Judges.
Silvia De La Paz Cabezas Flores petitions for review of the dismissal by the
Board of Immigration Appeals (“BIA”) of her appeal from an immigration judge’s
(“IJ”) denial of her applications for asylum, withholding of removal, and relief
from removal under the Convention Against Torture (“CAT”) and her motions to
*
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).
remand to the IJ. We have jurisdiction under 8 U.S.C. § 1252(b). We deny the
petition for review for the reasons that follow.
1. In her opening brief, Petitioner claims asylum and withholding of
removal based on membership in the proposed particular social groups of
“unprotected females in El Salvador” or “women unable to leave a domestic
relationship with a gang member in El Salvador.” “A court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “[I]ssue exhaustion is a
jurisdictional requirement . . . .” Alvarado v. Holder, 759 F.3d 1121, 1130 (9th
Cir. 2014). “To satisfy the exhaustion requirement, [Petitioner] needed to put the
BIA on notice in [her] appeal.” Diaz-Jimenez v. Sessions, 902 F.3d 955, 959 (9th
Cir. 2018) (cleaned up). And “the [BIA] does not per se err when it concludes that
arguments raised for the first time on appeal do not have to be entertained.”
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam).
Petitioner failed to administratively exhaust these claims to asylum and
withholding of removal. Petitioner did not bring her claim of membership in the
proposed particular social group “women unable to leave a domestic relationship
with a gang member in El Salvador” before the BIA. And the BIA declined to
address her proposed particular social group of “unprotected females in El
Salvador” because she did not bring it before the IJ in a timely manner. Petitioner
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does not argue any exception to the requirement of administrative exhaustion
applies. Thus, we lack jurisdiction to consider these claims.
2. As to the proposed social group Petitioner raised before the IJ and the
BIA (“Salvadoran women in common law marriages who are unable to leave their
relationships”), Petitioner argues that the BIA and the IJ erred in concluding that
her proposed social group did not have the same “immutable” characteristics as
“married women in Guatemala who are unable to leave their relationship[s].” See
Matter of A-R-C-G-, 26 I. & N. Dec. 388, 389 (BIA 2014).1 “We review the
agency’s factual findings under the extremely deferential substantial-evidence
standard, under which we treat such findings as conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Velasquez-Gaspar v.
Barr, ___ F.3d ___, slip op. at 7 (9th Cir. 2020) (internal quotation marks and
citation omitted). To establish eligibility for asylum or withholding of removal
based on membership in a particular social group, a petitioner must show that the
group is “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014);
see also Rios v. Lynch, 807 F.3d 1123, 1124 (9th Cir. 2015).
1
Although Matter of A-R-C-G- was overruled by Matter of A-B-, 27 I. & N. Dec.
316, 317 (A.G. 2018), the court judges this case according to the law at the time of
agency adjudication. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
3
Substantial evidence supports the BIA’s finding that Petitioner’s relationship
did not share the same kind of immutability as the relationship in Matter of
A-R-C-G- because Petitioner did not establish that she was unable to leave her
relationship. Although Petitioner had testified she stayed with her abuser for
financial support, she also testified that they were not together from 2007 through
2010 (when her abuser lived in the United States) and, after he returned to El
Salvador in 2011 until the time she left in October 2012, he was in jail for six
months.2 The IJ and the BIA found it significant that Petitioner was never married
to her abuser, and she lived with her abuser for only either 11 months or 29 non-
consecutive months. Thus, Petitioner failed to demonstrate that the relationship
was of long enough duration that she would be unable to leave the relationship for
societal or other reasons.3 Although Petitioner’s proposed social group shares the
“common immutable characteristic of gender,” see Matter of A-R-C-G-, 26 I. & N.
Dec. at 392, Petitioner failed to identify evidence in the record to compel a
2
The abusive relationship did not begin until sometime in 2011.
3
Because Petitioner’s claim that she is a member of a group sharing a common
immutable characteristic fails, we need not reach her other arguments regarding
“particularity” and “social distinction,” or that the Salvadoran government is
unable or unwilling to protect her from persecution. Neither the IJ nor the BIA
reached those issues in finding that she failed to prove that her relationship status
was an immutable characteristic.
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conclusion that her relationship4 met the criteria to make it an immutable
characteristic, see id. at 392–93 (holding that “marital status can be an immutable
characteristic where the individual is unable to leave the relationship” because of
“societal expectations about gender and subordination” or “legal constraints
regarding divorce and separation”).
3. Substantial evidence supports the BIA’s and the IJ’s conclusion that
Petitioner failed to establish she would be tortured by or “at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 1208.18(a)(1). Petitioner asserts that her abuser was
friends with local police, and that police were generally too corrupt to prevent
abuse by her ex-partner. However, her general allegations of unresponsiveness and
corruption do not provide substantial evidence to compel the conclusion that
Salvadoran government officials will likely consent or acquiesce to her torture,
especially considering her ex-partner had been arrested and jailed multiple times.
See Andrade-Garcia v. Lynch, 828 F.3d 829, 836–37 (9th Cir. 2016).
4. Petitioner appeals the denial of her motion to remand to the IJ to
consider evidence she suffers from Post-Traumatic Stress Disorder (PTSD). “This
4
Petitioner argues that she is the common law wife of her abuser. However, the IJ
found that Petitioner’s relationship was not the equivalent of a common law
marriage. Petitioner’s evidence that spousal rights are granted to persons “who can
prove that they lived together as a couple for at least 3 years,” does not compel a
conclusion that the IJ or the BIA mischaracterized the nature of her relationship.
5
court reviews BIA denials of motions to reopen,” Chuen Piu Kwong v. Holder, 671
F.3d 872, 880 (9th Cir. 2011), and to “reconsider,” Ayala v. Sessions, 855 F.3d
1012, 1020 (9th Cir. 2017), for abuse of discretion. “The standard for mental
incompetency as set by the BIA . . . is a stringent one.” Salgado v. Sessions, 889
F.3d 982, 989 (9th Cir. 2018). “[A]lleged poor memory without some credible
evidence of an inability to comprehend or meaningfully participate in the
proceedings does not constitute indicia of incompetency.” Id.
The BIA did not abuse its discretion in denying Petitioner’s motion to
remand to the IJ. Petitioner’s inconsistent testimony alone would not have
obligated the IJ to assess her competency. See id. And the BIA did not abuse its
discretion in concluding her claim would fail even if she had PTSD because her
claim was distinguished from the particular social group in Matter of A-R-C-G-.
“Further, even though safeguards are only required when an IJ concludes an
applicant is incompetent, [Petitioner] was nevertheless afforded the very
safeguards contemplated . . . —the opportunity to consult with [an] attorney and to
examine witnesses and present evidence.” Salgado, 889 F.3d at 988. “Any
error—and we find none—was harmless.” Id. at 989.
5. Petitioner’s motion to remand on grounds of ineffective assistance of
counsel did not comply with the procedural requirements for such a claim laid out
in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988); thus, she is “entitled to relief
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only if the ineffectiveness of counsel was plain on its face.” Guan v. Barr, 925
F.3d 1022, 1033 (9th Cir. 2019) (internal quotation marks and citation omitted).
The BIA did not abuse its discretion in denying Petitioner’s motion to reopen
proceedings based on alleged ineffective assistance of counsel before the IJ. Her
argument that she should not have been required to file a bar complaint because
prior counsel merely negligently “made a procedural oversight” is unconvincing.
She also elides her failure to inform prior counsel of her allegations. Further, any
alleged negligence in failing to recognize and present evidence of Petitioner’s
PTSD would not have made a difference in the outcome of the case. See
Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir. 2005) (“[T]he question before
us is whether first counsel’s failure to present evidence . . . may have affected the
outcome of the proceedings.”) (cleaned up).
PETITION FOR REVIEW DENIED.
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