Angel Martinez-Dominguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 14-72558
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANGEL MARTINEZ-DOMINGUEZ, No. 14-72558

Petitioner, Agency No. A200-878-185

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

Respondent.

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

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Angel Martinez-Dominguez, 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 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 questions of law de

* 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). novo, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent

that deference is owed to the BIA’s determination 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 dismiss in part and deny in part the

petition for review.

We lack jurisdiction to consider Martinez-Dominguez’s contention

regarding his “imputed American nationality” because he failed to raise the issue

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 record does not compel the conclusion that Martinez-Dominguez

established changed or extraordinary circumstances to excuse his untimely asylum

application. See 8 C.F.R. § 1208.4(a)(4), (5). We reject the contention that the

agency failed to consider Martinez-Dominguez’s evidence of alleged changed

circumstances. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (The

agency “does not have to write an exegesis on every contention.”) (internal

quotation marks omitted). Thus, Martinez-Dominguez’s asylum claim fails.

Martinez-Dominguez does not challenge the agency’s finding that he failed

2 14-72558 to establish past persecution. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177

n.5 (9th Cir. 2013). As for Martinez-Dominguez’s claim of a fear of future

persecution, the agency did not err in finding that Martinez-Dominguez 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 Delgado-Ortiz v. Holder, 600 F.3d

1148, 1151-52 (9th Cir. 2010) (explaining that “returning Mexicans from the

United States” is not a cognizable social group). Thus, Martinez-Dominguez’s

withholding of removal claim fails.

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

Martinez-Dominguez failed to show it is more likely than not that he would be

tortured by or with the consent or acquiescence of the government. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

We reject Martinez-Dominguez’s contention that the BIA violated his due

process rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring

3 14-72558 error to prevail on a due process claim); see also Larita-Martinez v. INS, 220 F.3d

1092, 1095-96 (9th Cir. 2000) (an alien “attempting to establish that the [BIA]

violated his right to due process by failing to consider relevant evidence must

overcome the presumption that it did review the evidence.”).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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