Antonio Martinez-Munoz v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-71912
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO MARTINEZ-MUNOZ, No. 16-71912

Petitioner, Agency No. A087-968-059

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

Respondent.

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

Submitted August 7, 2019**

Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.

Antonio Martinez-Munoz, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing Martinez’s

appeal from an immigration judge’s (“IJ”) decision denying Martinez’s application

* 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). for withholding of removal and relief under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252.

Where the BIA adopts the IJ’s decision and also provides its own review of

the evidence and the law, we review both the IJ and the BIA’s decisions. See Ali

v. Holder, 637 F.3d 1025, 1028-29 (9th Cir. 2011). We review de novo questions

of law. Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008). We review for

substantial evidence the agency’s factual findings, Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006), and we deny in part and dismiss in part the petition

for review.

Substantial evidence supports the agency’s conclusion that Martinez failed

to 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”). Neither Martinez nor his family

have suffered violence in Mexico or received threats from anyone in Mexico. To

the extent that Martinez argues that he would be targeted upon return because of

perceived wealth related to his return from the United States, this does not

constitute membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d

1125, 1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-

2 E-G-V-, 26 I & N Dec. 227, 237 (BIA 2014)); see also Ramirez-Munoz v. Lynch,

816 F.3d 1226, 1229 (9th Cir. 2016) (“imputed wealthy Americans” returning to

Mexico did not constitute a particular social group). Our conclusion is not affected

by the differing nexus standards applicable to asylum and withholding of removal

claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017)

(discussing Zetino v. Holder having drawn no distinction between the standards

where there was no nexus at all to a protected ground). Thus, Martinez’s

withholding of removal claim fails.

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

Martinez failed to show it is more likely than not that he will be tortured by or with

the consent or acquiescence of the government if returned to Mexico. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Zheng v. Holder, 644 F.3d

829, 835-36 (9th Cir. 2011) (possibility of torture too speculative). The record

contains no evidence that compels reversal of the agency’s conclusion that

Martinez would be tortured upon return to Mexico.

Martinez has not stated a due process violation in the agency’s decision to

deny him a continuance to pursue relief under the Deferred Action for Parents of

Americans (DAPA) program. See Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th

Cir. 2005) (“Absent a showing of clear abuse, we typically do not disturb an IJ’s

3 discretionary decision not to continue a hearing.”). Because the DAPA program

was never implemented, and later formally rescinded, Martinez cannot demonstrate

prejudice. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010) (to

state a due process violation a petitioner must show prejudice). To the extent

Martinez argues that the denial of the continuance deprived him of the opportunity

to apply for prosecutorial discretion, this argument was not raised before the BIA,

and we lack jurisdiction to consider it. 8 U.S.C. § 1252(d)(1); Figueroa v.

Mukasey, 543 F.3d 487, 492 (9th Cir. 2008).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.