Andres Santiago-Mateo v. William P. Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-71159
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDRES SANTIAGO-MATEO, No. 16-71159

Petitioner, Agency No. A206-695-877

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

Respondent.

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

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Andres Santiago-Mateo, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing Santiago-

Mateo’s appeal from an immigration judge’s (“IJ”) decision denying his

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

* 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). 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). We deny in part and

dismiss in part the petition for review.

The BIA did not err in finding that Santiago-Mateo 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 Barrios v. Holder, 581 F.3d 849, 854

(9th Cir. 2009). Substantial evidence supports the BIA’s determination that

Santiago-Mateo did not otherwise establish that he would be persecuted 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, Santiago-Mateo’s asylum and withholding of removal claims fail.

2 16-71159 Substantial evidence also supports the agency’s denial of CAT relief

because Santiago-Mateo failed to show that it is more likely than not he will be

tortured by or with the consent or acquiescence of the government if returned to

Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We do not reach Santiago-Mateo’s contentions as to ineffective assistance of

counsel. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order)

(finding that to the extent petitioners contended they received ineffective assistance

of counsel, the court lacked jurisdiction to review unexhausted claims that could

have been corrected by the BIA); see also Singh v. Napolitano, 649 F.3d 899, 900,

902-03 (9th Cir. 2011) (per curiam) (concluding that petitioner’s claim of

ineffective assistance of counsel, based on his prior attorney’s conduct after the

final order of removal was entered, was unexhausted because petitioner failed to

first file a motion to reopen with the BIA).

We reject Santiago-Mateo’s contention that the immigration court lacked

jurisdiction over his case. See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th

Cir. 2019) (initial notice to appear need not include time and date information to

vest jurisdiction in immigration court).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-71159