NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADIEL ALFREDO RIVERA-TRINIDAD, No. 20-71463
Petitioner, Agency No. A209-388-572
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2021**
Seattle, Washington
Before: GILMAN,*** GOULD, and MILLER, Circuit Judges.
Adiel Alfredo Rivera-Trinidad, a native and citizen of El Salvador, entered
the United States unlawfully in October 2016. The Department of Homeland
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Security (“DHS”) initiated removal proceedings against him by filing a Notice to
Appear (“NTA”) with the immigration court in November 2016. See 8 C.F.R. §
1003.14(a). The DHS charged Rivera-Trinidad with removability under 8 U.S.C. §
1182(a)(7)(A)(i)(I). Rivera-Trinidad appeared before an immigration judge (“IJ”)
and sought relief in the form of asylum, withholding of removal, and CAT
protection.
In March 2018, the IJ issued an oral decision finding Rivera-Trinidad
removable as charged and denying the applications for relief. Rivera-Trinidad
appealed to the Board of Immigration Appeals (“BIA”), and the BIA dismissed
Rivera-Trinidad’s appeal. Rivera-Trinidad petitioned for review.
Where the BIA agrees with the IJ’s reasoning and supplements that reasoning
with its own analysis, we review both decisions. Bhattarai v. Lynch, 835 F.3d 1037,
1042 (9th Cir. 2016). The scope of this Court’s review over the BIA’s denial of
asylum is extremely narrow and “highly deferential.” Jie Shi Liu v. Sessions, 891
F.3d 834, 837 (9th Cir. 2018). Findings of fact are “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). To
reverse the administrative factual determinations under the substantial-evidence
standard, the Court “must find that the evidence not only supports [a contrary]
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conclusion, but compels it . . . .” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 & n.1,
483–84 (2012) (emphasis in original).
For the following reasons, Rivera-Trinidad’s petition is dismissed in part and
denied in part.
First, Rivera-Trinidad did not exhaust his claim that he held “a political
opinion that would lead to his harm,” so we lack subject-matter jurisdiction to review
it. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Substantial evidence supports the denial of Rivera-Trinidad’s remaining
exhausted claims for asylum and withholding of removal. While Rivera-Trinidad
claimed an objectively reasonable fear of future persecution on account of his
membership in a particular social group of “close family members of a police officer
killed by gang members in El Salvador, who oppose criminal gangs,” that fear was
undermined by the fact that his immediate relatives in El Salvador were living there
uninjured and unthreatened. It was also undermined by the fact that Rivera-Trinidad
had himself lived unharmed and unthreatened in El Salvador for three years after his
brother’s death. The BIA also noted that Rivera-Trinidad’s police officer cousins
have not been harmed, and that the deaths of two other cousins who were killed in
2015 and 2017 had no known connection to the death of Rivera-Trinidad’s brother.
Although Rivera-Trinidad does not have to wait until he is attacked to be eligible for
asylum or withholding of removal, Rivera-Trinidad must establish an objectively
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reasonable well-founded fear. See J.R. v. Barr, 975 F.3d 778, 784 (9th Cir. 2020);
8 C.F.R. § 1208.13(b). He simply has not done so here.
Rivera-Trinidad’s other proposed social groups are also insufficient. First,
Rivera-Trinidad has not claimed or provided evidence supporting the claim that he
or anyone else in his immediate family has been harmed or kidnapped. Thus, the
BIA properly concluded that Rivera-Trinidad cannot be a member of the proposed
social group “family members of others who have been kidnapped in El Salvador.”
Rivera-Trinidad has also not provided evidence showing the other social groups that
he has proposed — “Salvadorans who have an opposition to criminal gangs and their
authority,” and “Salvadorans who have a political view against crime in general and
corruption in law enforcement or by officials, and who are persecuted for having
such a political view” — are sufficiently particular or socially distinct.
Second, substantial evidence supports the BIA’s determination that Rivera-
Trinidad did not establish a probability of torture by or with the acquiescence or
willful blindness of a government official. Rivera-Trinidad has the burden to
demonstrate that he would more likely than not be tortured in El Salvador with the
government’s consent or acquiescence. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1),
(7). Rivera-Trinidad has not shown that the government of El Salvador would
acquiesce in any torture if he returns to El Salvador.
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Third, the BIA did not violate Rivera-Trinidad’s right to due process by not
considering all of the evidence. For a due process violation to have occurred, (1) the
proceeding must have been so fundamentally unfair that the noncitizen was
prevented from reasonably presenting his case, and (2) the noncitizen must show
prejudice, “which means that the outcome of the proceeding may have been affected
by the alleged violation.” Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.
2009) (per curiam).
Rivera-Trinidad has not sufficiently identified evidence that the IJ ignored or
explained how the evidence in the record compels a finding contrary to that of the
IJ. There is no error.
PETITION DISMISSED IN PART AND DENIED IN PART.
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