NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-1344 ______________

MARTHA LUCIA YUNGA-TENECELA, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ______________

On Petition for Review of Orders from the Department of Homeland Security and the Executive Office for Immigration Review (A098-916-788) Immigration Judge: Carrie C. Johnson-Papillo ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) November 9, 2020

BEFORE: HARDIMAN, GREENBERG, and SCIRICA, Circuit Judges

(Filed: November 16, 2020)

____________

OPINION * ______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Martha Lucia Yunga-Tenecela petitions for review of an immigration judge’s final

order of removal based on her negative reasonable fear determination. We will deny the

petition.

I

A citizen of Ecuador, Yunga-Tenecela was apprehended in Arizona after she

entered the country illegally in 2005. An immigration judge ordered her removal to

Ecuador on June 17, 2005. The following year, Yunga-Tenecela again entered the United

States illegally and remained here until she returned to Ecuador in January 2013. Yunga-

Tenecela tried to reenter the country illegally a third time on March 15, 2015, but was

apprehended immediately near Rio Grande City, Texas. The Department of Homeland

Security reinstated the June 17, 2005 removal order under

(a)(5).

Yunga-Tenecela expressed fear of returning to Ecuador, so she was interviewed by

a DHS asylum officer. She told the asylum officer that she feared her ex-boyfriend, Juan

Nieves, would kill her if she returned to Ecuador. Yunga-Tenecela began dating Nieves

in 2008, while living in the United States Nieves was deported to Ecuador in 2012, but

the couple reunited when Yunga-Tenecela returned to Ecuador in 2013. The couple had

one child together while in the United States and had another child in Ecuador. Yunga-

Tenecela left Ecuador in 2015 after her relationship with Nieves deteriorated. Nieves

became violent towards Yunga-Tenecela; he would slap her and threaten to kill her and

her children because he wanted to see other women and to hide the fact that he had a

family with her. After separating from Nieves, Yunga-Tenecela was robbed and

2 threatened by two men, and in 2019 two men told her mother they would kill Yunga-

Tenecela if she returned to Ecuador. Yunga-Tenecela believes that Nieves was behind the

robbery and the recent incident with her mother.

The asylum officer found Yunga-Tenecela credible, but made a negative

reasonable fear determination because Yunga-Tenecela failed to show that any

persecution she might suffer in Ecuador would be on the basis of a protected

characteristic or that she would be subject to torture by or with the acquiescence of a

public official.

At Yunga-Tenecela’s request, the IJ held a hearing to review the asylum officer’s

negative reasonable fear determination. At the start of the hearing, Yunga-Tenecela’s

counsel requested an adjournment so she could submit a police report being sent from

Ecuador that recounted the threats made to Yunga-Tenecela’s mother. The IJ denied the

request. At the close of the hearing, the IJ concurred with the asylum officer’s negative

reasonable fear determination because “conflicts of a personal nature do not constitute

persecution on account of an enumerated ground,” and because Yunga-Tenecela

“expressed no fear of torture [by] government officials or those acting in an official

capacity.” A.R. 29.

II

We have jurisdiction to review the IJ’s negative reasonable fear determination

under

(a)(1), as it is a final removal order. See Bonilla v. Sessions,

, 90 n.4 (3d Cir. 2018) (the immigration judge’s concurrence with the asylum

officer’s negative reasonable fear determination as to an alien previously removed

3 constitutes a final removal order by operation of

(a), (f), and (g)(1)).

We review legal and constitutional issues de novo. Duhaney v. Att’y Gen.,

(3d Cir. 2010). We review the IJ’s negative reasonable fear determination under the

substantial evidence standard, which requires us “to uphold the IJ’s findings if they are

‘supported by reasonable, substantial, and probative evidence on the record considered as

a whole.’” Romero v. Att’y Gen.,

(3d Cir. 2020) (quoting Garcia v.

Att’y Gen.,

(3d Cir. 2011)).

III

Yunga-Tenecela first argues the IJ denied her due process of law by refusing to

adjourn the hearing so she could obtain and submit the police report from Ecuador. We

disagree.

To succeed on a due process claim, Yunga-Tenecala must show that the denial of

process “prevented [her] from reasonably presenting [her] case,” Khan v. Att’y Gen.,

(3d Cir. 2006) (quoting Uspango v. Ashcroft,

(3d Cir.

2002)). She also must show “substantial prejudice.” Khan,

(quoting

Anwar v. I.N.S.,

(5th Cir. 1997)).

Yunga-Tenecela sought the adjournment to give her time to submit a police report

detailing recent threats against her. As the IJ explained, that report would bolster Yunga-

Tenecela’s credibility. But because Yunga-Tenecela’s credibility was not at issue, there

was no reason to wait for the report. Besides, the exclusion of the police report was not

prejudicial because the threats, as observed by the IJ, were of a personal nature and

unrelated to any of the five protected grounds for relief (race, religion, nationality,

4 political opinion, or membership in a particular social group). See Gonzalez-Posadas v.

Att’y Gen.,

, 684–85 (3d Cir. 2015);

(c).

Yunga-Tenecela also claims she demonstrated a reasonable fear of persecution

because of her membership in a particular social group (victims of domestic violence).

We disagree for two reasons. First, to establish a cognizable particular social group, an

alien 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.” S.E.R.L. v. Att’y Gen.,

(3d Cir. 2018) (quoting

Matter of M-E-V-G-,

(BIA 2014)). The record is devoid of such

evidence. See also Matter of A-B-,

(A.G. 2018) (victims of

domestic violence will rarely constitute a cognizable particular social group), abrogated

on other grounds by Grace v. Barr,

, 905–06 (D.C. Cir. 2020). Second, we

have held that “[c]onflicts of a personal nature and isolated criminal acts do not constitute

persecution on account of a protected characteristic.” Gonzalez-Posadas,

.

For these reasons, we perceive no error in the IJ’s determination that Yunga-

Tenecela’s problems with Nieves are personal and unrelated to her membership in a

particular social group.

Nor does Yunga-Tenecela show error in the IJ’s determination that she failed to

establish a reasonable possibility of torture should she be removed to Ecuador. For an act

to constitute torture under the Convention Against Torture, it must, among other things,

be “by or at the instigation of or with the consent or acquiescence of a public official who

has custody or physical control of the victim.” Auguste v. Ridge,

(3d

5 Cir. 2005). Neither Nieves nor his alleged accomplices are government officials. And in

her petition, she neither points to evidence nor argues that government officials would

have “actual knowledge of” or be “willfully blind to” Nieves’s torturous actions. See

Myrie v. Att’y Gen.,

(3d Cir. 2017) (quoting Silva-Rengifo v. Att’y

Gen.,

(3d Cir. 2007)). So Yunga-Tenecela is not entitled to relief under

the CAT.

* * *

For the reasons stated, we will deny Yunga-Tenecela’s petition for review.

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