NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BALERIO CARMONA-BAUTISTA, No. 19-70614
Petitioner, Agency No. A098-801-079
v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 1, 2021** Pasadena, California
Before: KLEINFELD, HIGGINSON,*** and OWENS, Circuit Judges.
Balerio Carmona-Bautista seeks review of the Board of Immigration
Appeals’ (BIA) dismissal of his appeal of an Immigration Judge’s (IJ) denial of his
* 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). *** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. application for withholding of removal and protection under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
“Our review is limited to the BIA’s decision where the BIA conducts its own
review of the evidence and law, ‘except to the extent that the IJ’s opinion is
expressly adopted.’” Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013) (quoting
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). We review the BIA’s
legal determinations de novo and factual findings for substantial evidence. Singh
v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019). Under the substantial evidence
standard, we affirm the BIA’s decision unless compelled to conclude to the
contrary. Id.
First, Carmona-Bautista claims that the BIA erred in determining that he
failed to establish a protected ground for withholding of removal. To qualify for
relief, an applicant must demonstrate that his “life or freedom would be threatened
‘because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.’” Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th
Cir. 2017) (quoting 8 U.S.C. § 1231(b)(3)(A)).
The BIA properly determined that Carmona-Bautista’s proposed social
group of “witnesses to or victims of cartel violence or crime” in Mexico is not
cognizable because it lacks particularity and social distinction. Carmona-
2 Bautista’s proposed social group is not analogous to Henriquez-Rivas v. Holder,
707 F.3d 1081, 1092 (9th Cir. 2013) (en banc), because although Carmona-
Bautista reported his kidnapping to the police he did not testify in open court, and
substantial evidence supports the BIA’s determination that Carmona-Bautista “did
not present evidence that Mexican society in general ‘perceives, considers, or
recognizes persons’ who have witnessed cartel violence as a distinct group.”1 See
also Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016); Conde Quevedo v. Barr,
947 F.3d 1238, 1242–44 (9th Cir. 2020) (affirming BIA’s determination that
“people who report the criminal activity of gangs to police” in Guatemala was not
a cognizable particular social group “because of the absence of society-specific
evidence of social distinction”).
Carmona-Bautista further argues that the case should be remanded to the IJ
for clarification in light of the BIA’s intervening precedential decision in Matter of
W-Y-C- & H-O-B-, which emphasized that “[w]hile it is an applicant’s burden to
specifically delineate her proposed social group, the Immigration Judge should
ensure that the specific group being analyzed is included in his or her decision.”
1 In Henriquez-Rivas, the en banc court held that the particular social group of “people who testified against gang members” in El Salvador was cognizable based on the “significant evidence that Salvadoran society recognizes the unique vulnerability of people who testify against gang members in criminal proceedings, because gang members are likely to target these individuals as a group.” 707 F.3d at 1091–92.
3 27 I. & N. Dec. 189, 191 (BIA 2018). The BIA properly considered the same
proposed social group that Carmona-Bautista argued before the IJ, id. at 191-92,
and “[a]ny error committed by the IJ will be rendered harmless by the Board’s
application of the correct legal standard.” Brezilien v. Holder, 569 F.3d 403, 411
(9th Cir. 2009) (quoting Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)); see also
Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (“Whether a group constitutes
a ‘particular social group’ is a question of law.” (quoting Pirir-Boc v. Holder, 750
F.3d 1077, 1081 (9th Cir. 2014))).
Carmona-Bautista also asserts that the BIA erred in failing to address his
eligibility for relief on the basis of his political opinion. The IJ concluded that
Carmona-Bautista was targeted “for money” and not for any actual or imputed
political opinion. Carmona-Bautista did not meaningfully challenge this
determination before the BIA or on appeal to this court. Any such challenge is
therefore abandoned. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir.
1996) (“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
Second, Carmona-Bautista argues that the BIA erred in denying relief under
CAT. To qualify for such relief, Carmona-Bautista bears the burden of
establishing that he will more likely than not be tortured with the consent or
acquiescence of a public official if removed to his native country. Xochihua-
4 Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Substantial evidence
supports the BIA’s conclusion that Carmona-Bautista’s prior kidnapping and
harassment was not conducted by or with the acquiescence of public officials, and
that Carmona-Bautista failed to establish that public officials would acquiesce in
any future torture against him. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034
(9th Cir. 2014); Barajas-Romero, 846 F.3d at 363.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 4 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BALERIO CARMONA-BAUTISTA, No. 19-70614
Petitioner, Agency No. A098-801-079
v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 1, 2021** Pasadena, California
Before: KLEINFELD, HIGGINSON,*** and OWENS, Circuit Judges.
Balerio Carmona-Bautista seeks review of the Board of Immigration
Appeals’ (BIA) dismissal of his appeal of an Immigration Judge’s (IJ) denial of his
* 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). *** The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation. application for withholding of removal and protection under the Convention
Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
“Our review is limited to the BIA’s decision where the BIA conducts its own
review of the evidence and law, ‘except to the extent that the IJ’s opinion is
expressly adopted.’” Vitug v. Holder, 723 F.3d 1056, 1062 (9th Cir. 2013) (quoting
Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). We review the BIA’s
legal determinations de novo and factual findings for substantial evidence. Singh
v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019). Under the substantial evidence
standard, we affirm the BIA’s decision unless compelled to conclude to the
contrary. Id.
First, Carmona-Bautista claims that the BIA erred in determining that he
failed to establish a protected ground for withholding of removal. To qualify for
relief, an applicant must demonstrate that his “life or freedom would be threatened
‘because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.’” Barajas-Romero v. Lynch, 846 F.3d 351, 356 (9th
Cir. 2017) (quoting 8 U.S.C. § 1231(b)(3)(A)).
The BIA properly determined that Carmona-Bautista’s proposed social
group of “witnesses to or victims of cartel violence or crime” in Mexico is not
cognizable because it lacks particularity and social distinction. Carmona-
2 Bautista’s proposed social group is not analogous to Henriquez-Rivas v. Holder,
707 F.3d 1081, 1092 (9th Cir. 2013) (en banc), because although Carmona-
Bautista reported his kidnapping to the police he did not testify in open court, and
substantial evidence supports the BIA’s determination that Carmona-Bautista “did
not present evidence that Mexican society in general ‘perceives, considers, or
recognizes persons’ who have witnessed cartel violence as a distinct group.”1 See
also Reyes v. Lynch, 842 F.3d 1125, 1138 (9th Cir. 2016); Conde Quevedo v. Barr,
947 F.3d 1238, 1242–44 (9th Cir. 2020) (affirming BIA’s determination that
“people who report the criminal activity of gangs to police” in Guatemala was not
a cognizable particular social group “because of the absence of society-specific
evidence of social distinction”).
Carmona-Bautista further argues that the case should be remanded to the IJ
for clarification in light of the BIA’s intervening precedential decision in Matter of
W-Y-C- & H-O-B-, which emphasized that “[w]hile it is an applicant’s burden to
specifically delineate her proposed social group, the Immigration Judge should
ensure that the specific group being analyzed is included in his or her decision.”
1 In Henriquez-Rivas, the en banc court held that the particular social group of “people who testified against gang members” in El Salvador was cognizable based on the “significant evidence that Salvadoran society recognizes the unique vulnerability of people who testify against gang members in criminal proceedings, because gang members are likely to target these individuals as a group.” 707 F.3d at 1091–92.
3 27 I. & N. Dec. 189, 191 (BIA 2018). The BIA properly considered the same
proposed social group that Carmona-Bautista argued before the IJ, id. at 191-92,
and “[a]ny error committed by the IJ will be rendered harmless by the Board’s
application of the correct legal standard.” Brezilien v. Holder, 569 F.3d 403, 411
(9th Cir. 2009) (quoting Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)); see also
Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (“Whether a group constitutes
a ‘particular social group’ is a question of law.” (quoting Pirir-Boc v. Holder, 750
F.3d 1077, 1081 (9th Cir. 2014))).
Carmona-Bautista also asserts that the BIA erred in failing to address his
eligibility for relief on the basis of his political opinion. The IJ concluded that
Carmona-Bautista was targeted “for money” and not for any actual or imputed
political opinion. Carmona-Bautista did not meaningfully challenge this
determination before the BIA or on appeal to this court. Any such challenge is
therefore abandoned. Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir.
1996) (“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
Second, Carmona-Bautista argues that the BIA erred in denying relief under
CAT. To qualify for such relief, Carmona-Bautista bears the burden of
establishing that he will more likely than not be tortured with the consent or
acquiescence of a public official if removed to his native country. Xochihua-
4 Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020). Substantial evidence
supports the BIA’s conclusion that Carmona-Bautista’s prior kidnapping and
harassment was not conducted by or with the acquiescence of public officials, and
that Carmona-Bautista failed to establish that public officials would acquiesce in
any future torture against him. See Garcia-Milian v. Holder, 755 F.3d 1026, 1034
(9th Cir. 2014); Barajas-Romero, 846 F.3d at 363. Carmona-Bautista’s assertion
of general violence and corruption in Mexico is insufficient to compel the opposite
conclusion. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016)
(“Where Petitioners have not shown they are any more likely to be victims of
violence and crimes than the populace as a whole in Mexico, they have failed to
carry their burden.”).
Third, Carmona-Bautista claims that he was denied due process because the
IJ did not allow his daughter to testify. He argues that his daughter’s testimony
would have corroborated his testimony and supported his credibility. We review
due process challenges de novo. Zetino v. Holder, 622 F.3d 1007, 1011 (9th Cir.
2010). In immigration proceedings, “[a] due process violation occurs where (1)
the proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case, and (2) the alien demonstrates prejudice, which
means that the outcome of the proceeding may have been affected by the alleged
violation.” Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (quoting
5 Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009)). Carmona-
Bautista fails to show prejudice because the BIA assumed that he testified credibly.
Nor was Carmona-Bautista prevented from reasonably presenting his case because
his daughter’s testimony was duplicative of her declaration and other evidence
submitted in the record.
Finally, the BIA did not err in declining to address whether the IJ erred in its
negative credibility finding or whether Carmona-Bautista was barred from
withholding of removal as a result of his prior convictions. The BIA assumed that
Carmona-Bautista’s testimony was credible and affirmed only the IJ’s alternate
holding that Carmona-Bautista failed to establish a cognizable particular social
group. See I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a
general rule courts and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
The petition for review is DENIED.