Diaz-Gamez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2024
• Docket: 23-1066
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HENRY OBED DIAZ-GAMEZ, No. 23-1066 Agency No. Petitioner, A204-903-759 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted September 9, 2024** Phoenix, Arizona

Before: RAWLINSON and COLLINS, Circuit Judges, and FITZWATER, District Judge.***

Henry Obed Diaz-Gamez, a native and citizen of Mexico, petitions for

review of the BIA’s dismissal of his appeal of the denial of his application for

* 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 Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. withholding of removal and his request for voluntary departure. We review the

BIA’s legal conclusions, “such as whether a proposed particular social group is

cognizable, de novo,” and “factual findings for substantial evidence.” Nguyen v.

Barr, 983 F.3d 1099, 1101 (9th Cir. 2020) (citations omitted).

1. The BIA did not err in upholding the decision from the Immigration

Judge (IJ) denying withholding of removal. The BIA did not rely on vacated

decisions such as Matter of L-E-A-II, 27 I&N Dec. 581 (A.G. 2019), or Matter of

A-B-II, 27 I&N Dec. 316 (A.G. 2018), in rejecting Diaz-Gamez’s proposed social

groups.

Substantial evidence supports the BIA’s finding that Diaz-Gamez failed to

establish a nexus between his proposed particular social group (PSG) of “family

members of individuals targeted and killed by criminal organizations in Mexico”

and any potential future persecution. As the BIA observed, Diaz-Gamez did not

establish “why his cousin was killed, who killed him, or the circumstances thereof”

or that the same criminals have targeted similarly situated family members.

Therefore, substantial evidence supports the determination that Diaz-Gamez’s

relationship to his cousin would not be “a reason” that he would be harmed.

Barajas-Romero v. Lynch, 846 F.3d 351, 359 (9th Cir. 2017); see also Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (explaining that a fear of random

2 23-1066 crime does not establish fear of persecution on a protected ground).1

2. We do not have jurisdiction to review the discretionary denial of

voluntary departure. See Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012).

“However, we retain power to review constitutional claims or questions of law

raised upon a petition for review.” Id. (citation and internal quotation marks

omitted). Because Diaz-Gamez does not raise a constitutional challenge or

question of law, we dismiss the petition as to this claim. See id.; see also 8 U.S.C.

§ 1252(a)(2)(B), (D).

PETITION DISMISSED in part and DENIED in part.

1 We do not reach the issue of whether Diaz-Gamez’s proposed PSG is cognizable because the BIA did not reject Diaz-Gamez’s application on that ground. See INS v. Bagamasbad, 429 U.S. 24, 25-26 (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. . . .”) (citations omitted). Nor do we reach Diaz-Gamez’s arguments based on his other proposed PSG of “Americanized Mexicans” because he conceded in his brief that it “may be overly broad to constitute a PSG by itself.”

3 23-1066