NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Heriberto Elmes-Mariano, No. 21-8
Petitioner, Agency No. A205-975-859
v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted on April 19, 2023 ** Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District Judge.
Petitioner Heriberto Elmes-Mariano, a native of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”), which
dismissed his appeal of an order of an Immigration Judge (“IJ”). In his petition,
* 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 Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. 1 Elmes-Mariano seeks review of only the denials of his applications for
cancellation of removal, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252 over the withholding and CAT claims, and we deny the petition. We
lack jurisdiction to review the claim regarding cancellation of removal, 8 U.S.C.
§ 1252(a)(2)(B)(i), and we dismiss the petition as to that claim.
1. The Immigration Judge (“IJ”) did not err by issuing a Notice to
Respondent, which notified Elmes-Mariano of his obligation to produce
documentation of his criminal history. Elmes-Mariano argues that, in substance,
the Notice was an improper demand for records related to his criminal history
under Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011), overruled on
other grounds, Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
The Immigration and Nationality Act (INA) requires applicants for relief
from removal to “comply with the applicable requirements to submit
information or documentation in support of the applicant’s application for relief
or protection as provided . . . in the instructions for the application form.”
8 U.S.C. § 1229a(c)(4)(B). The application that Elmes-Mariano completed
required him to “submit documentation” of his criminal history. See Dept. of
Justice, Executive Office for Immigration Review, Form EOIR–42B,
Application for Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents 5 (Rev. Jul. 2014). Elmes-Mariano does not dispute
that he failed to provide any documentation about his criminal history before his
2 individual hearing.1 The IJ did not act outside of their authority in issuing a
Notice to Elmes-Mariano notifying him that he had not yet “provided any
documentation . . . regarding his criminal history” and advising him “of the
need to submit evidence regarding the disposition of each citation, arrest and/or
conviction” as required.
Rosas-Castaneda does not apply in this case. In Rosas-Castaneda, an
applicant for relief from removal produced his record of conviction—a criminal
complaint and plea agreement. 655 F.3d at 883. The IJ requested the applicant
to produce a transcript of his plea hearing in state court, because the record of
conviction was inconclusive as to whether the applicant had necessarily been
convicted of a controlled substance offense. Id. We held that § 1229a(c)(4)(B)
does not authorize an IJ to order an applicant for relief from removal to produce
corroboration of non-testimonial evidence, and therefore the IJ’s order to
supplement the record of conviction with a transcript of the applicant’s state
court plea hearing was in error. Id. at 887. Here, the IJ’s Notice was not a
demand to supplement the record of conviction like that in Rosas-Castaneda.
And unlike the applicant in Rosas-Castaneda, Elmes-Mariano does not dispute
that he failed to produce any documentation related to his crimes.
2. Elmes-Mariano next challenges the BIA’s denial of his application
for cancellation of removal on the ground that he is statutorily ineligible
1 Elmes-Mariano later produced some evidence of some of his criminal history.
3 because he is not a person of good moral character. Elmes-Mariano contests the
IJ’s factual finding that he made false statements about his criminal and
immigration history with dishonest intent. See 8 U.S.C. § 1101(f)(6) (“No
person shall be regarded as . . . a person of good moral character who . . . g[ave]
false testimony for the purpose of obtaining any benefits under this chapter.”).
That finding is a factual determination that underlies a denial of discretionary
relief authorized by 8 U.S.C. § 1229b. Because 8 U.S.C. § 1252(a)(2)(B)(i)
“strips courts of jurisdiction to review ‘any judgment regarding the granting of
relief’” under the specified provisions, which include § 1229b, we lack
jurisdiction to review the contested factual determination. Patel v. Garland, 142
S. Ct. 1614, 1621, 1627 (2022) (interpreting § 1252(a)(2)(B)(i) as precluding
judicial review of facts found as part of discretionary-relief proceedings under
the specified provisions). We therefore dismiss the petition as to Elmes-
Mariano’s claim regarding cancellation of removal.
3. Elmes-Mariano next argues that the BIA erred in denying his
application for withholding of removal on the ground that his proposed social
group of “persons who are perceived as wealthy because of the amount of time
they have spent in the United States” was not cognizable. “Whether a group
constitutes a ‘particular social group’ under the INA is a question of law we
review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We
have previously rejected the social group that Elmes-Mariano proposes as not
cognizable under the INA. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229
4 (9th Cir. 2016) (rejecting social group of “imputed wealthy Americans”).
Elmes-Mariano argues that Ramirez-Munoz was wrongly decided, but we are
bound to follow it absent clearly irreconcilable intervening authority. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The BIA did not err in
rejecting Elmes-Mariano’s proposed social group.
4. Substantial evidence supports the BIA’s determination that Elmes-
Mariano is not eligible for CAT relief. To establish eligibility for CAT
protection, “an applicant must show ‘it is more likely than not that he or she
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Heriberto Elmes-Mariano, No. 21-8
Petitioner, Agency No. A205-975-859
v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted on April 19, 2023 ** Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS,*** District Judge.
Petitioner Heriberto Elmes-Mariano, a native of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”), which
dismissed his appeal of an order of an Immigration Judge (“IJ”). In his petition,
* 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 Brian M. Morris, United States District Judge for the District of Montana, sitting by designation. 1 Elmes-Mariano seeks review of only the denials of his applications for
cancellation of removal, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252 over the withholding and CAT claims, and we deny the petition. We
lack jurisdiction to review the claim regarding cancellation of removal, 8 U.S.C.
§ 1252(a)(2)(B)(i), and we dismiss the petition as to that claim.
1. The Immigration Judge (“IJ”) did not err by issuing a Notice to
Respondent, which notified Elmes-Mariano of his obligation to produce
documentation of his criminal history. Elmes-Mariano argues that, in substance,
the Notice was an improper demand for records related to his criminal history
under Rosas-Castaneda v. Holder, 655 F.3d 875 (9th Cir. 2011), overruled on
other grounds, Young v. Holder, 697 F.3d 976 (9th Cir. 2012).
The Immigration and Nationality Act (INA) requires applicants for relief
from removal to “comply with the applicable requirements to submit
information or documentation in support of the applicant’s application for relief
or protection as provided . . . in the instructions for the application form.”
8 U.S.C. § 1229a(c)(4)(B). The application that Elmes-Mariano completed
required him to “submit documentation” of his criminal history. See Dept. of
Justice, Executive Office for Immigration Review, Form EOIR–42B,
Application for Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents 5 (Rev. Jul. 2014). Elmes-Mariano does not dispute
that he failed to provide any documentation about his criminal history before his
2 individual hearing.1 The IJ did not act outside of their authority in issuing a
Notice to Elmes-Mariano notifying him that he had not yet “provided any
documentation . . . regarding his criminal history” and advising him “of the
need to submit evidence regarding the disposition of each citation, arrest and/or
conviction” as required.
Rosas-Castaneda does not apply in this case. In Rosas-Castaneda, an
applicant for relief from removal produced his record of conviction—a criminal
complaint and plea agreement. 655 F.3d at 883. The IJ requested the applicant
to produce a transcript of his plea hearing in state court, because the record of
conviction was inconclusive as to whether the applicant had necessarily been
convicted of a controlled substance offense. Id. We held that § 1229a(c)(4)(B)
does not authorize an IJ to order an applicant for relief from removal to produce
corroboration of non-testimonial evidence, and therefore the IJ’s order to
supplement the record of conviction with a transcript of the applicant’s state
court plea hearing was in error. Id. at 887. Here, the IJ’s Notice was not a
demand to supplement the record of conviction like that in Rosas-Castaneda.
And unlike the applicant in Rosas-Castaneda, Elmes-Mariano does not dispute
that he failed to produce any documentation related to his crimes.
2. Elmes-Mariano next challenges the BIA’s denial of his application
for cancellation of removal on the ground that he is statutorily ineligible
1 Elmes-Mariano later produced some evidence of some of his criminal history.
3 because he is not a person of good moral character. Elmes-Mariano contests the
IJ’s factual finding that he made false statements about his criminal and
immigration history with dishonest intent. See 8 U.S.C. § 1101(f)(6) (“No
person shall be regarded as . . . a person of good moral character who . . . g[ave]
false testimony for the purpose of obtaining any benefits under this chapter.”).
That finding is a factual determination that underlies a denial of discretionary
relief authorized by 8 U.S.C. § 1229b. Because 8 U.S.C. § 1252(a)(2)(B)(i)
“strips courts of jurisdiction to review ‘any judgment regarding the granting of
relief’” under the specified provisions, which include § 1229b, we lack
jurisdiction to review the contested factual determination. Patel v. Garland, 142
S. Ct. 1614, 1621, 1627 (2022) (interpreting § 1252(a)(2)(B)(i) as precluding
judicial review of facts found as part of discretionary-relief proceedings under
the specified provisions). We therefore dismiss the petition as to Elmes-
Mariano’s claim regarding cancellation of removal.
3. Elmes-Mariano next argues that the BIA erred in denying his
application for withholding of removal on the ground that his proposed social
group of “persons who are perceived as wealthy because of the amount of time
they have spent in the United States” was not cognizable. “Whether a group
constitutes a ‘particular social group’ under the INA is a question of law we
review de novo.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We
have previously rejected the social group that Elmes-Mariano proposes as not
cognizable under the INA. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229
4 (9th Cir. 2016) (rejecting social group of “imputed wealthy Americans”).
Elmes-Mariano argues that Ramirez-Munoz was wrongly decided, but we are
bound to follow it absent clearly irreconcilable intervening authority. Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). The BIA did not err in
rejecting Elmes-Mariano’s proposed social group.
4. Substantial evidence supports the BIA’s determination that Elmes-
Mariano is not eligible for CAT relief. To establish eligibility for CAT
protection, “an applicant must show ‘it is more likely than not that he or she
would be tortured if removed to the proposed country of removal.’” Plancarte
Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022) (quoting 8 C.F.R.
§ 1208.16(c)(2)). Elmes-Mariano does not point to any evidence in the record
specific to him; he relies only on general conditions of violence and the country
report for Mexico to establish a likelihood of torture. That evidence is not
sufficient to establish a particularized risk of torture to Elmes-Mariano. Lalayan
v. Garland, 4 F.4th 822, 840 (9th Cir. 2021).
PETITION DISMISSED IN PART, DENIED IN PART.