Del Cid-Guerra v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2024
• Docket: 23-687
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIO HUMBERTO DEL CID- No. 23-687 GUERRA, Agency No. A205-296-980 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 1, 2024** Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK, District Judge.***

* 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 William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. Mario Humberto Del-Cid Guerra, a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ (“BIA”) decision to

dismiss his appeal of the immigration judge’s (“IJ”) denial of his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). “Where, as here, the BIA agrees with the IJ’s reasoning, we

review both decisions.” Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1016 (9th

Cir. 2023) (quoting Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir.

2018)). We review the cognizability of a particular social group (“PSG”) de novo.

Nguyen v. Barr, 983 F.3d 1099, 1101 (9th Cir. 2020) (citation omitted). “We

review for substantial evidence factual findings underlying the BIA’s

determination that a petitioner is not eligible for asylum, withholding of removal,

or CAT relief.” Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022),

as amended (citation omitted). As the parties are familiar with the facts, we do not

recount them here. We deny the petition for review.

We uphold the BIA’s determination that Del Cid-Guerra did not meet his

burden to show that he would suffer future persecution “on account of” a protected

ground for asylum or “because of” a protected ground for withholding of removal.

Id. at 832 (citations omitted); see also 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A)

(asylum); 8 U.S.C. § 1231(b)(3)(A) (withholding of removal).

His first PSG, “a family with a car selling business who are well-known in

2 23-687 the community and are being targeted by gang violence,” is not cognizable as a

protected ground because selling cars is not an immutable characteristic that cannot

be changed. Cf. Plancarte Sauceda, 23 F.4th at 833–34 (holding that being a nurse

could be immutable because merely changing jobs would not change that petitioner

“would still be a nurse” based on her training, licensure, and experience). The

PSG is also not narrowly defined; nothing in the record shows that the group is

cohesive, homogenous, or visible in society. See Delgado-Ortiz v. Holder, 600

F.3d 1148, 1151 (9th Cir. 2010) (per curiam) (noting these considerations may

affect whether a PSG is cognizable (citation omitted)). And to the extent that the

defining characteristic of the PSG is that its members are “targeted by gang

violence,” the fact of harm cannot be the sole basis for distinguishing a PSG. See

Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080–81 (9th Cir. 2020).

For the second and third proposed PSGs—“Americanized deportee in

Guatemala” and “American deportee in Guatemala who is the father of United

States citizen children”—substantial evidence supports the BIA’s determination

that Del Cid-Guerra failed to show a nexus between membership in these groups

and any harm. See Rodriguez-Zuniga, 69 F.4th at 1016 (citations omitted); see

also Garcia v. Wilkinson, 988 F.3d 1136, 1146–47 (9th Cir. 2021) (explaining that

a protected ground must be “one central reason” for persecution for asylum and “a

reason” for persecution for withholding of removal). Del-Cid Guerra consistently

3 23-687 testified to the IJ that the people who attacked his family in Guatemala wanted

money, not that the violence was motivated by the victims being “Americanized.”

Though his declaration provided that his family members were attacked because of

their connections to the United States, the IJ and BIA were not required to find this

contradictory evidence was dispositive, particularly because Del Cid-Guerra failed

to explain the inconsistency or provide any other factual support. For the same

reasons, substantial evidence supports the BIA’s rejection of his argument about

facing harm because of an imputed American identity.

Given that the foregoing issues are dispositive of Del Cid-Guerra’s asylum

and withholding claims, we need not and do not reach the parties’ arguments about

timeliness and reasonable relocation.

Finally, because Del Cid-Guerra presented no evidence that he would be

tortured in Guatemala or that the government would acquiesce to his torture,

substantial evidence supports the BIA’s determination that he is not entitled to

protection under CAT. See 8 C.F.R. § 1208.16(c)(4); Rodriguez-Zuniga, 69 F.4th

at 1023.

The temporary stay of removal remains in place until the mandate issues.

The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED.

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