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United States Court of Appeals, Ninth Circuit.

Wendy Lisseth HERRERA-DE PEREZ, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 19-71914

Decided: January 27, 2021

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges. David Belaire Landry, Esquire, Attorney, Law Office of David Landry, San Diego, CA, for Petitioner Robbin Kinmonth Blaya, Esquire, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent


Wendy Lisseth Herrera de Perez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge's decision denying her 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 for substantial evidence the agency's factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA's interpretation of the governing statutes and regulations. Id. at 1241-42. We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Herrera de Perez's humanitarian asylum claim. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented below).

Substantial evidence supports the agency's determination that Herrera de Perez failed to establish that she was or would be persecuted on account of a protected ground, including proposed particular social groups based on her family membership and status as a woman not protected by the government. 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 [her] membership in such group”); 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”).

The agency did not err in concluding that Herrera de Perez did not establish membership in a cognizable particular social group based on his status as a perceived wealthy returnee. 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))).

Thus, Herrera de Perez's asylum and withholding of removal claims fail.

Substantial evidence also supports the agency's denial of CAT relief because Herrera de Perez 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 El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject as unsupported by the record Herrera de Perez's contentions that the agency violated her right to due process or otherwise erred in its analysis of her claims.

As stated in the court's October 7, 2020 order, the temporary stay of removal remains in place until issuance of the mandate.


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