ALVARADO FAVELA v. BARR (2019)

MEMORANDUM **

Francisco Abraham Alvarado-Favela, a native and citizen of Mexico, petitions for review of the Board of Immigrations Appeals’ (BIA) order dismissing his appeal from an immigration judge’s (IJ) decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Whether a group constitutes a “particular social group” is a question of law that we review de novo. Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).

The BIA did not err in its conclusion that Alvarado-Favela 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))); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (finding that individuals returning to Mexico from the United States who are believed to be wealthy does not constitute a particular social group). Thus, Alvarado-Favela’s asylum and withholding of removal claims fail.¹

Substantial evidence supports the BIA’s determination that Alvarado-Favela did not establish that he is more likely than not to 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); Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (concluding that petitioner did not establish the necessary “state action” for CAT relief). Thus, Alvarado-Favela’s CAT claim fails.

PETITION FOR REVIEW DENIED.

FOOTNOTES

1.   Our conclusion is not affected by the differing nexus standards applicable to asylum and withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction between the standards where there was no nexus at all to a protected ground).