Andres Diaz-Vazquez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 11, 2020
• Docket: 17-72114
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDRES DIAZ-VAZQUEZ, No. 17-72114

Petitioner, Agency No. A205-490-717

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted May 6, 2020**

Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.

Andres Diaz-Vazquez, 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, 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,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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 record does not compel the conclusion that Diaz-Vazquez applied for

asylum within a reasonable time of any changed or extraordinary circumstances as

to excuse the untimely filing of his asylum application. See 8 C.F.R.

§ 1208.4(a)(4), (5); see also Toj-Culpatan v. Holder, 612 F.3d 1088, 1091-92 (9th

Cir. 2010).

We lack jurisdiction to consider Diaz-Vazquez’s contention that the delay in

filing his asylum application was due to court scheduling 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).

Thus, Diaz-Vazquez’s asylum claim fails.

The agency did not err in finding that Diaz-Vazquez 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 social

group, “[t]he applicant must ‘establish that the group is (1) composed of members

2 17-72114 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 agency’s determination that Diaz-Vazquez

otherwise failed to demonstrate 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, Diaz-Vazquez’s withholding of removal claim fails.

Substantial evidence also supports the agency’s denial of CAT relief because

Diaz-Vazquez 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).

We do not consider the materials Diaz-Vazquez references in his opening

3 17-72114 brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,

963-64 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative

record).

The record does not support Diaz-Vazquez’s contentions that the BIA failed

to consider evidence or otherwise erred in its analysis of his claims. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an

exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.

2006) (petitioner did not overcome the presumption that the BIA reviewed the

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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