Armando Huerta-Maldonado v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2020
• Docket: 19-71296
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ARMANDO HUERTA-MALDONADO, No. 19-71296 AKA Armando Huerta, Agency No. A206-411-060 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

Armando Huerta-Maldonado, 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”).

* 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). Our jurisdiction is governed by 8 U.S.C. § 1252. 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We

review factual findings for substantial evidence. Id. at 1241. We deny in part and

dismiss in part the petition for review.

The record does not compel the conclusion that Huerta-Maldonado applied

for asylum within the one-year deadline or within a reasonable time of any

changed or extraordinary circumstances as to excuse the untimely filing. See 8

C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir.

2007) (record did not compel the conclusion that the petitioner showed changed

circumstances to excuse the late asylum filing). We lack jurisdiction to consider

Huerta-Maldonado’s contentions regarding lack of notice or the legislative intent

of the one-year bar, because he failed to raise them before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review

claims not presented below).

Thus, Huerta-Maldonado’s asylum claim fails.

The BIA did not err in concluding that Huerta-Maldonado failed to establish

membership in a cognizable social group of “young men who have been actively

recruited by gangs and who have refused to join.” See Reyes v. Lynch, 842 F.3d

2 19-71296 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))).

Substantial evidence also supports the determination that Huerta-Maldonado

failed to establish a nexus between past or future harm and his membership in a

particular social group of “family members of those who have actively opposed

gangs in Mexico.” See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an

applicant “must provide some evidence of [motive], direct or circumstantial.”);

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, Huerta-Maldonado’s withholding of removal claim fails.

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

Huerta-Maldonado 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).

The record does not support Huerta-Maldonado’s contentions that the BIA

3 19-71296 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) (the BIA 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

record).

We do not consider the materials Huerta-Maldonado references in his

opening 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).

As stated in the Court’s June 20, 2019 order, the temporary stay of removal

remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

4 19-71296