United States v. 2020-03-09 | 12-73742 | DINA RIVERA-PENATE V. WILLIAM BARR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DINA NOEMI RIVERA-PENATE;
FERNANDO JAVIER PORTILLO-
RIVERA; KEVIN ANTONIO PORTILLO-
RIVERA,

Petitioners,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 12-73742

Agency Nos. A094-771-409
A087-766-843
A087-766-844

MEMORANDUM
*

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted February 13, 2020
San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and S. MURPHY,
**

District Judge.

An Immigration Judge (“IJ”) denied Petitioner’s application—on behalf of
herself and her two sons—for asylum, withholding of removal, and protection from

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED

MAR 9 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
removal under the Convention Against Torture. The Board of Immigration
Appeals (“BIA”) dismissed Petitioner’s appeal and then denied her motion for
reconsideration of the dismissal. Petitioner timely filed her petition for review
only as to the BIA decision denying her motion for reconsideration.
As an initial matter, Petitioner likely waived all timely arguments by
focusing solely on the merits of the BIA’s underlying dismissal order in her
opening brief. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). But
even absent waiver, we still would deny the petition for review. The BIA correctly
found that Petitioner’s motion for reconsideration “identified no evidence that was
overlooked and no legal argument that demonstrates error” in the dismissal order’s
conclusion that Petitioner failed to establish the necessary nexus between
Escobar’s conduct and her membership in the particular social group of “women.”
The BIA therefore did not abuse its discretion by denying Petitioner’s motion for
reconsideration. See 8 C.F.R. § 1003.2(b)(1).
Further, Petitioner’s reliance on Pereira v. Sessions, 138 S.Ct. 2105 (2018)
is misplaced. Pereira is inapplicable to Petitioner’s circumstances. Indeed, we
recently rejected an argument identical to Petitioner’s Pereira argument in
Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019).
PETITION FOR REVIEW DENIED.