NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO HUMBERTO RIVERA, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 21-1336

Agency No. A094-303-009

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 21, 2023**

San Francisco, California

Before: SCHROEDER, CALLAHAN, and BUMATAY, Circuit Judges.

Mario Humberto Rivera, a citizen and national of El Salvador, petitions for 

review of the Board of Immigration Appeals (“BIA”) decision affirming the 

Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of removal, 

and relief under the Convention Against Torture (“CAT”). We review the denial of 

* 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).

FILED

APR 25 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

asylum, withholding of removal, and CAT claims for substantial evidence, and 

“must uphold the agency determination unless the evidence compels a contrary 

decision.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). We have 

jurisdiction under 8 U.S.C. § 1252 and deny the petition. 

1. Substantial evidence supports the agency’s conclusion that Rivera was 

competent to participate in immigration proceedings. See generally Matter of M-AM, 25 I. & N. Dec. 474, 479–80 (B.I.A. 2011); Salgado v. Sessions, 889 F.3d 982, 

987–89 (9th Cir. 2018). Despite his recent car crash and reported memory problems, 

the record indicates that Rivera was able to fully understand and follow the 

proceedings. And “even though safeguards are only required when an IJ concludes 

an applicant is incompetent,” Salgado, 889 F.3d at 988, the IJ ensured Rivera had

the types of safeguards contemplated in M-A-M, such as access to counsel. M-A-M, 

25 I. & N. Dec. at 481–83. Indeed, his counsel stated it was unnecessary to revisit 

Rivera’s direct examination, and the government stated that his lack of memory 

about specific dates did not matter, as no claims relied on precise date 

determinations. “[F]orgetting things and having bad memory” do not establish 

mental incompetency. Salgado, 889 F.3d at 988. 

2. Substantial evidence also supports the denial of asylum and withholding of 
3 

removal.1 See Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020) (“An applicant 

who fails to satisfy the lower standard for asylum necessarily fails to satisfy the more 

demanding standard for withholding of removal.”). Both claims depend on a finding 

that Rivera faced past persecution, and that he was harmed or threatened with harm 

on account of a protected ground, such as being a member of a particular social 

group. See Plancarte Sauceda v. Garland, 23 F.4th 824, 833 (9th Cir. 2022). 

First, substantial evidence supports the agency’s determination that Rivera did 

not suffer harm rising to the level of past persecution. Rivera testified that in 1995, 

the MS-13 gang attempted to recruit him. Although the gang members did not say 

so, Rivera believes they were recruiting him because he had military training. He 

was given two options: join or pay a monthly extortion fee under threat against his 

family. After declining the invitation, Rivera moved from San Vincente to San 

Salvador to seek work so he could pay the fee. The gang didn’t contact him again 

but sent notes to his sister asking for his whereabouts and set fire to her kitchen to 

intimidate the family. Rivera left El Salvador for the United States in 1998. He 

testified that once the gang learned he was in the United States, they increased the 

fee to $300 per month and threw rocks at his home in El Salvador. He has paid the 

1 Because the BIA affirmed the IJ’s decision regarding Rivera’s asylum and 

withholding claims, it did not reach the issue of Rivera’s one-year deadline to file 

an application for asylum. Likewise, since we only consider the grounds relied upon 

by the BIA, whether Rivera’s application was timely falls outside the scope of our 

review. See Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020).
4 

fee for 18 years, but fears that he won’t be able to afford it if returned to El Salvador 

and that he would be harmed or killed as a result by MS-13.

The record does not compel the conclusion that these threats rose to the level 

of past persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2006) 

(persecution is “an extreme concept” that does not encompass all negative treatment 

that society may regard as “offensive”). Rivera suffered unfulfilled threats and 

extortion demands, but no physical harm. And his circumstances, while serious, 

involve less physical harm than circumstances that still did not compel a finding of 

past persecution. See, e.g., Gu, 454 F.3d at 1019–21 (brief detention, beating, and 

interrogation); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995) (detention and 

beating). And without a finding of past persecution, Rivera is not entitled to a 

presumption of future persecution, see 8 C.F.R. § 1208.13(b)(1), and he failed to 

provide any other evidence that he would be subject to future persecution.

Second, substantial evidence supports the agency’s determination that Rivera 

failed to establish a nexus to a protected ground. On the one hand, Rivera testified 

that he believed he was recruited because of his military experience. On the other 

hand, he fears returning to El Salvador because he won’t have a way to pay the 

monthly extortion fee, and as a result, MS-13 will harm him and his family. He 

testified that MS-13 would “always try and recruit people” in his community, and 

that many people there faced similar threats, extortion, and harm. This record does 
5 

not compel a finding that Rivera will be persecuted on account of a protected class. 

And Rivera’s fear of “random violence by gang members bears no nexus to a 

protected ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010).

And third, substantial evidence supports the IJ’s determinations that Rivera

failed to identify a proposed particular social group in which he claims membership, 

and that the group he insinuated—“former military, with skills to further criminal 

activity”—was not cognizable. Rivera did not clearly define the proposed social 

group during his proceedings before the IJ, but the IJ nonetheless considered whether 

it was cognizable. To be cognizable, a proposed social group must exist 

independently of harm and risk of being persecuted. Diaz-Reynoso v. Barr, 968 F.3d 

1070, 1077 (9th Cir. 2020). We have previously rejected similar proposed social 

groups, suggesting that substantial evidence supported the BIA’s conclusions that 

these groups lacked particularity and social distinction. See, e.g., ArriagaBarrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (rejecting group based on 

former military service); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009), 

abrogated on other grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th 

Cir. 2013) (rejecting group of young men recruited by MS-13 who refused to join). 

And without a cognizable group, Rivera cannot demonstrate that he would be 
6 

persecuted on account of his membership in it.

2

3. Substantial evidence supports the denial of CAT protection because Rivera 

failed to show it is more likely than not he will be tortured by or with the consent of 

the government if returned to El Salvador. See Tzompantzi-Salazar v. Garland, 32 

F.4th 696, 704 (9th Cir. 2022). Nothing in the record compels a finding that Rivera 

has suffered torture or is likely to if returned. Rivera’s family continues to live there

without harm, and Rivera provided no evidence that he could not relocate within El 

Salvador. See Singh v. Whitaker, 914 F.3d 654, 663 (9th Cir. 2019) (lack of past 

torture and evidence about safe internal relocation are “[r]elevant considerations”).

PETITION DENIED.

2 Rivera correctly points out that the IJ cited a now-abrogated BIA decision in its 

decision. But in affirming the IJ’s decision, the BIA specifically stated that it did 

not rely on the vacated decision. Instead, the BIA relied on Zetino, 622 F.3d at 1016. 

Additionally, the agency’s reference to Matter of A-B-, 27 I&N Dec. 316 (AG 2018),

for the proposition that “[s]ocial groups defined by their vulnerability to private 

criminal activity likely lack the particularity required” does not require remand

because the BIA applied pre-A-B- precedent in determining whether his class was 

cognizable.