Cristina Perez-Lopez v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2021
• Docket: 18-71417
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRISTINA PEREZ-LOPEZ, AKA Amelia Nos. 18-71417 Cristina Perez-Lopez, 19-71606

Petitioner, Agency No. A205-595-140

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Cristina Perez-Lopez, a native and citizen of Guatemala, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her 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). (petition No. 18-71417) and the BIA’s order denying her motion to reopen

(petition No. 19-71606). 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 for substantial evidence the agency’s factual

findings. Id. at 1241. We review for abuse of discretion the denial of a motion to

reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny in

part and dismiss in part the petition for review in No. 18-71417, and we deny the

petition for review in No. 19-71606.

As to petition No. 18-71417, the agency did not err in concluding that Perez-

Lopez failed to establish membership in a cognizable particular social group. 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))).

Thus, Perez-Lopez’s asylum and withholding of removal claims fail.

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

Perez-Lopez failed to show it is more likely than not she would be tortured by or

2 18-71417 with the consent or acquiescence of the government if returned to Guatemala. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

To the extent Perez-Lopez requests, in her opening brief, to take judicial

notice of country condition reports that were not submitted to the agency, the

request is denied. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc)

(court’s review is limited to the administrative record).

To the extent Perez-Lopez argues that the IJ improperly afforded her

testimony less evidentiary weight, we lack jurisdiction to consider the contention.

See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks

jurisdiction to review claims not presented to the agency).

Perez-Lopez’s request, raised in her opening brief, to remand for a

determination on her asylum eligibility in the first instance based on her claimed

membership in the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176

(W.D. Wash. 2018), is denied because the record indicates the agency made a

determination as to the merits of Perez-Lopez’s asylum application.

As to petition No. 19-71606, the BIA did not abuse its discretion in denying

Perez-Lopez’s motion to reopen, where she did not establish that membership in

the class identified in Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018),

would affect the outcome of her proceedings. See Najmabadi v. Holder, 597 F.3d

983, 986 (9th Cir. 2010) (“The BIA can deny a motion to reopen on any one of at

3 18-71417 least three independent grounds—failure to establish a prima facie case for the

relief sought, failure to introduce previously unavailable, material evidence, and a

determination that even if these requirements were satisfied, the movant would not

be entitled to the discretionary grant of relief which he sought.” (internal quotation

marks and citation omitted)).

As stated in the court’s July 20, 2018 and July 10, 2019 orders, the

temporary stay of removal remains in place until issuance of the mandate.

PETITION NO. 18-71417 DENIED in part; DISMISSED in part.

PETITION NO. 19-71606 DENIED.

4 18-71417