Buenrostro Murgia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 30, 2024
• Docket: 23-428
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JORGE ALBERTO BUENROSTRO No. 23-428 MURGIA, Agency No. A206-535-809 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 17, 2024** Pasadena, California

Before: COLLINS, H.A. THOMAS, and JOHNSTONE, Circuit Judges.

Jorge Alberto Buenrostro Murgia petitions for review of a decision of the

Board of Immigration Appeals (BIA) affirming a decision by an Immigration

Judge (IJ) denying his applications for asylum, withholding of removal, and

* 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). protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252. We deny the petition.

“Our review is limited to the BIA’s decision, except to the extent that the

IJ’s opinion is expressly adopted.” Singh v. Garland, 57 F.4th 643, 651 (9th Cir.

2022) (quoting Khudaverdyan v. Holder, 778 F.3d 1101, 1105 (9th Cir. 2015)). We

review the BIA’s determination of legal questions de novo, and the agency’s

factual findings for substantial evidence. Id. Under this standard, we must defer to

the agency’s factual findings unless “any reasonable adjudicator would be

compelled to conclude to the contrary based on the evidence in the record.” Id.

(quoting Aden v. Wilkinson, 989 F.3d 1073, 1079 (9th Cir. 2021)).

1. The BIA appropriately rejected Buenrostro Murgia’s claims for asylum

and withholding of removal on the ground that he had not shown a connection

between his feared harm and any protected group. See Rodriguez-Zuniga v.

Garland, 69 F.4th 1012, 1016 (9th Cir. 2023). The BIA found that Buenrostro

Murgia had not advanced before the IJ his claims that he would face persecution

on account of his imputed political opinion or his membership in the group

“returning Mexicans after residency in the United States who will be perceived as

wealthy.” The BIA may reject a proposed social group on the ground that a

petitioner did not advance the group before the IJ. Honcharov v. Barr, 924 F.3d

1293, 1297 (9th Cir. 2019). On appeal to this court, Buenrostro Murgia does not

2 23-428 challenge the BIA’s findings that he failed to do so. To the extent that Buenrostro

Murgia now argues that he would be persecuted because of his actual (rather than

imputed) political opinion, or because he opposes the violence of the Caballeros

Templarios cartel, we may not consider these arguments because Buenrostro

Murgia failed to exhaust them before the BIA. 8 U.S.C. § 1252(d)(1); Sola v.

Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (“A petitioner’s failure to raise an

issue before the BIA generally constitutes a failure to exhaust . . . .”) (per curiam).

Buenrostro Murgia’s opening brief in this court, moreover, failed to address the

BIA’s holding that these arguments had not been exhausted. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013) (stating that issues not specifically

raised and argued in a party’s brief are waived).1

2. Substantial evidence supports the BIA’s determination that Buenrostro

Murgia was not entitled to CAT relief because he failed to show that he would

more likely than not be tortured upon return to Mexico. Sharma v. Garland, 9

F.4th 1052, 1067 (9th Cir. 2021). Buenrostro Murgia does not contend that he has

been tortured in the past, and the death threats he received from his ex-wife years

1 Because Buenrostro Murgia’s failure to identify a protected group is dispositive of his asylum and withholding claims, and because the BIA resolved his claims entirely on that ground, we need not address Buenrostro Murgia’s argument on this appeal that he faced past persecution or reasonably fears future persecution. See Rodriguez-Zuniga, 69 F.4th at 1016; Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (“In reviewing the BIA’s decisions, we consider only the grounds relied upon by that agency.”).

3 23-428 before these proceedings do not compel the conclusion that he would more likely

than not face torture in the future. See Duran-Rodriguez v. Barr, 918 F.3d 1025,

1029–30 (9th Cir. 2019). Additionally, the kidnapping of Buenrostro Murgia’s

daughter, though incontestably serious, does not compel the conclusion that he

would more likely than not be tortured upon return to Mexico. Cf. Fon v. Garland,

34 F.4th 810, 812, 816 (9th Cir. 2022) (upholding a denial of CAT relief after

soldiers had threatened to kill the petitioner, stabbed him, and ransacked his home).

Buenrostro Murgia also points to country conditions evidence. But he does

not explain why this evidence of generalized crime and human rights abuses shows

that he faces a particularized risk of torture by the government of Mexico or with

the government’s acquiescence. See B.R. v. Garland, 26 F.4th 827, 844–45 (9th

Cir. 2022); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). He has

therefore failed to show entitlement to protection under the CAT.

DENIED.2

2 Because we deny the petition, Buenrostro Murgia’s motion to stay his removal pending appeal (Dkt. No. 3) is denied as moot.

4 23-428