LUCIO REYES v. BARR (2019)

MEMORANDUM **

Antonio Juan Lucio-Reyes, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency’s factual findings, Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014), and review de novo claims of due process violations in immigration proceedings, Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review.

In his opening brief, Lucio-Reyes does not challenge the agency’s dispositive determination that his asylum claim is time-barred. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver). Thus, we deny the petition for review as to Lucio-Reyes’s asylum claim.

The agency did not err in finding that Lucio-Reyes failed to establish membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group, “[t]he applicant must ‘establish 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.’ ” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico does not constitute a particular social group); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (“returning Mexicans from the United States” is too broad to qualify as a cognizable social group). Substantial evidence supports the agency’s determination that Lucio-Reyes failed to establish that any harm he experienced or fears in Mexico was or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (applicant’s “desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground”). Thus, Lucio-Reyes’s withholding of removal claim fails.

Substantial evidence supports the agency’s denial of CAT relief because Lucio-Reyes failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record Lucio-Reyes’s contentions that the BIA streamlined its decision and failed to provide a reasoned explanation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

Lastly, we lack jurisdiction to review the agency’s discretionary denial of voluntary departure. See Corro-Barragan, 718 F.3d at 1177 (the court’s jurisdiction over challenges to the denial of voluntary departure is limited to constitutional claims or questions of law).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.