ORANTES DE HERNANDEZ v. BARR (2019)

MEMORANDUM **

Angela Orantes de Hernandez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing Orantes de Hernandez’s appeal from an immigration judge’s (“IJ”) decision denying Orantes de Hernandez’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1), and we deny in part and dismiss in part the petition.

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. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).

The BIA did not err in finding that Orantes de Hernandez did not 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 Barbosa v. Barr, 919 F.3d 1169, 1175 (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). The BIA appropriately declined to consider Orantes de Hernandez’s proposed social group of landowners, because it was presented for the first time on appeal.¹ Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019). We lack jurisdiction to consider social groups Orantes de Hernandez failed to present to the BIA. 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, Orantes de Hernandez’s asylum and withholding of removal claims fail.

Substantial evidence supports the agency’s denial of CAT relief because Orantes de Hernandez failed to show it is more likely than not she will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the necessary “state action” for CAT relief).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

FOOTNOTES

1.   Orantes de Hernandez does not challenge the BIA’s conclusion that she failed to present the social group to the IJ, so any argument that she did is waived. 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).