PIEDRAS SANTIAGO v. BARR (2020)

MEMORANDUM **

Jose Luis Piedras-Santiago, 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 applications for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal, and the BIA’s denial of his motion to remand. 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 review for abuse of discretion the BIA’s denial of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Piedras-Santiago’s proposed social group based on family because he failed to raise it before 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).

The agency did not err in finding that Piedras-Santiago 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 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); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning Mexicans from the United States” did not constitute a particular social group).

Substantial evidence supports the BIA’s determination that Piedras-Santiago otherwise failed to establish that the harm he fears in Mexico would be on account of a protected ground. See 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”).

Thus, Piedras-Santiago’s asylum and withholding of removal claims fail.

In light of this disposition, we do not reach Piedras-Santiago’s contentions regarding the timeliness of his asylum application. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues unnecessary to the results they reach).

Substantial evidence also supports the BIA’s denial of CAT relief because Piedras-Santiago failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of torture).

As to cancellation of removal, we lack jurisdiction to review the agency’s discretionary determination that Piedras-Santiago failed to show exceptional and extremely unusual hardship to a qualifying relative. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735-36 (9th Cir. 2012) (court lacks jurisdiction to review merits of hardship determination and only retains jurisdiction over constitutional claims that have “some possible validity” (internal quotation marks and citation omitted)).

The BIA did not abuse its discretion in denying Piedras-Santiago’s motion to remand to consider additional evidence for cancellation of removal, where he failed to demonstrate prima facie eligibility for relief. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is entitled to deny a motion to reopen where the applicant fails to demonstrate prima facie eligibility for the underlying relief.”); see also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008) (“The formal requirements for a motion to reopen and a motion to remand are the same.”).

Finally, Piedras-Santiago’s request, raised in his opening brief, to remand for consideration of new evidence is denied.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.