GONZALEZ CERVANTES v. BARR (2019)

MEMORANDUM **

Jose Manuel Gonzalez-Cervantes, 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, and relief under the Convention Against Torture (“CAT”). 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). We deny in part and dismiss in part the petition for review.

The BIA did not err in finding that Gonzalez-Cervantes’s social group of “Chicano males aged 18-40 returning to Mexico after living most of their lives in the United States” was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social 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 Barbosa v. Barr, 926 F.3d 1053, 1059-60 (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).

Gonzalez-Cervantes also fears harm in Mexico based on his family social group. Substantial evidence supports the agency’s determination that Gonzalez-Cervantes failed to establish that he would be persecuted on account of his membership in such group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group” (emphasis in original)); Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An [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”). 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). Thus, we reject Gonzalez-Cervantes’s contention that the case should be remanded pursuant to Barajas-Romero v. Lynch.

We lack jurisdiction to consider Gonzalez-Cervantes’s claim that he is a member of the particular social group “persons opposed to cartel activities by refusing extortions” because he did not exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

Thus, Gonzalez-Cervantes’s asylum and withholding of removal claims fail.

Substantial evidence supports the agency’s denial of CAT relief because Gonzalez-Cervantes failed to show it is more likely than not that he would be tortured by or with the consent or acquiescence of the government of Mexico. See Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish the necessary “state action” for CAT relief).

Gonzales-Cervantes has waived any challenge to the agency determination that he failed to establish that he would be persecuted on account of his religion or imputed political opinion. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.