HERNANDEZ RODRIGUEZ v. BARR (2019)

MEMORANDUM **

Arnoldo Rafeal Hernandez-Rodriguez (“Hernandez-Rodriguez”), a native and citizen of Guatemala, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for withholding of removal under the Immigration and Nationality Act (“INA”) and protection 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), but we defer to the BIA’s interpretation of 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. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016).

The BIA did not err in concluding there was no due process violation. Hernandez-Rodriguez has not demonstrated that the proceedings before the IJ were fundamentally unfair nor has he established that he suffered prejudiced. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (must show fundamental unfairness affecting the outcome of the proceeding).

The BIA did not err in finding that Hernandez-Rodriguez has not established membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-E-G-V-, 26 I & N Dec. 227, 237 (BIA 2014)). Hernandez-Rodriguez has not established that Guatemalans who resist gang recruitment would be perceived by society or criminal gangs as a particular social group. See Santos-Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir. 2009) (men in Guatemala resisting gang violence is not a particular social group), abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013). Hernandez-Rodriguez also has not established that Guatemalans who have resided for many years in the United States would be perceived by society or criminal gangs as a particular social group. See Reyes, 842 F.3d at 1131 (explaining cognizability standard) (citing Matter of M-E-G-V-, 26 I&N Dec. 227, 237 (BIA 2014)). Thus, Hernandez-Rodriguez’s withholding of removal claim fails.

Substantial evidence supports the agency’s denial of CAT relief. The record does not compel the conclusion that Hernandez-Rodriguez is “more likely than not” to be tortured by or with the consent or acquiescence of the government if he returns to Guatemala. See 8 C.F.R. § 1208.16(c)(2); see also Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Thus, Hernandez-Rodriguez’s CAT claim also fails.

PETITION FOR REVIEW DENIED.