Carlos Martinez-Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-71164
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS MARTINEZ-MENDOZA, No. 16-71164

Petitioner, Agency No. A200-151-621

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.

Carlos Martinez-Mendoza, 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”).

We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,

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

deference is owed to the BIA’s interpretation 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, Garcia-Milian v. Holder,

755 F.3d 1026, 1031 (9th Cir. 2014), and review de novo due process claims,

Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). We deny the petition for

review.

The BIA did not err in finding that Martinez-Mendoza’s social group of

“young men returning from extended stay in United States”1 was not cognizable.

See Reyes v. Lynch, 842 F.3d 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)));

see also Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019) (finding that

individuals returning to Mexico from the United States who are believed to be

1 On appeal to this court, Martinez-Mendoza alternatively characterizes this proposed social group as “those returning after many years as a resident in the United States.”

2 wealthy does not constitute a particular social group).

Martinez-Mendoza also fears harm in Mexico based on his family social

group. Substantial evidence supports the agency’s determination that Martinez-

Mendoza failed to establish that he would be persecuted on account of his

membership in such group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir.

2011) (even if membership in a particular social group is established, an applicant

must still show that “persecution was or will be on account of his membership in

such group” (emphasis in original)); 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”). 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-Mendoza’s asylum and withholding of removal claims fail.

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

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

3 tortured by or with the consent or acquiescence of the government of Mexico. See

Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish

the necessary “state action” for CAT relief).

Martinez-Mendoza’s contention that his right to due process was violated

based on alleged insufficiencies in the BIA’s decision fails for lack of prejudice.

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

prejudice to prevail on a due process claim).

PETITION FOR REVIEW DENIED.