Unreported / Non-Citable
Background
Susan Katania Rivas-Nunez and her two minor children, citizens of Colombia, petitioned the Ninth Circuit to review a Board of Immigration Appeals order that summarily affirmed an Immigration Judge's denial of asylum, withholding of removal, and protection under the Convention Against Torture. The Lead Petitioner described mistreatment by a former neighbor, Raul, and extortive threats by unknown individuals against the family. She based her claims on political opinion and on a proposed social group defined by her relationship to her partner, who had run for local office. She also argued that paramilitary-linked groups routinely use threats and extortion to intimidate politically visible families.
The Immigration Judge found that Raul was motivated by anger and jealousy over her rejection of him. The Immigration Judge also found that the unknown extortionists sought money, that Colombia was not unwilling or unable to protect the petitioners, and that the petitioners had not been and would not likely be tortured with government involvement. Because the BIA affirmed without opinion, the Ninth Circuit reviewed the Immigration Judge's decision as the final agency action. The panel decided the case without oral argument.
The Court’s Holding
The court denied the petition. It reviewed the agency's factual findings for substantial evidence, under which they are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. Whether harm amounts to persecution is heavily fact-dependent. The court called the incidents reprehensible but could not say a reasonable jurist would be compelled to find persecution. On nexus, the court found the extortionists were motivated by economic gain, and the record did not compel a finding that they acted because of a protected characteristic such as family relation. Raul's attacks were tied to the Lead Petitioner's rejection of him. The record showed he pursued her in earlier relationships as well, so it did not compel the conclusion that he specifically targeted the proposed social group. The court also held that the record did not compel reversal of the finding that Colombia was not unwilling or unable to protect the petitioners, noting that police gave her partner some protection after a 2018 report of people demanding money. The asylum and withholding claims therefore failed.
The court upheld the denial of Convention Against Torture relief. Torture is more severe than persecution and must be inflicted by, or with the consent or acquiescence of, a public official. The Immigration Judge found no past or likely torture and no government consent or acquiescence, and the record did not compel a contrary finding. The court also rejected the due process challenge. Summary affirmance by the BIA is not itself a due process violation, and the court found no constitutional or administrative law problem here. The petitioners' motion to stay removal was denied.
Key Takeaways
- Even serious, reprehensible incidents do not establish persecution on appeal unless the record compels that conclusion under the deferential substantial evidence standard.
- Extortion motivated by financial gain does not compel a finding of nexus to political opinion or family-based social group membership, even when the family is politically visible.
- Attacks driven by personal anger over a rejected relationship, which the record showed began before the political connection, support a finding that the harm was not on account of a protected ground.
- Evidence that police gave some protection after a prior report can support a finding that the government is not unwilling or unable to protect, defeating a claim of future persecution.
- A BIA summary affirmance without opinion does not violate due process, because the court reviews the Immigration Judge's decision as the final agency action.
Why It Matters
This is an unpublished memorandum disposition, not precedent except as allowed by Ninth Circuit Rule 36-3. It applies existing Ninth Circuit authority on persecution, nexus, extortion motives, government protection, and summary affirmance, and does not announce a new rule. Its value is as an illustration of how the substantial evidence standard operates against claims built on mixed personal and political motives.
The ruling leaves the agency's removal order in place and denies the stay of removal. Because the court found the record did not compel the contrary findings, the decision turns on the evidence in this record, not on a holding that such claims can never succeed.