Evelio Garcia Torres v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2022
• Docket: 16-70514
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EVELIO GARCIA TORRES, No. 16-70514

Petitioner, Agency No. A200-157-931

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 16, 2022**

Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.

Evelio Garcia Torres, a native and citizen of Honduras, petitions for review

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

immigration judge’s (“IJ”) decision denying his 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). 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

deny in part and dismiss in part the petition for review.

Substantial evidence supports the agency’s determination that Garcia Torres

failed to establish that the harm he experienced or fears was or would be on

account of an actual or imputed political opinion. See INS v. Elias-Zacarias, 502

U.S. 478, 483 (1992) (an applicant “must provide some evidence of [motive],

direct or circumstantial”); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1031-

33 (9th Cir. 2014) (record did not compel the conclusion that the petitioner was

persecuted on account of an imputed political opinion). We reject as unsupported

by the record Garcia Torres’s contention that the BIA failed to address his political

opinion claim.

The BIA did not err in concluding that Garcia Torres did not establish

membership in a cognizable particular social group.1 See Reyes v. Lynch, 842 F.3d

1 The IJ articulated one proposed particular social group as “Honduran youth who are targeted for recruitment into gangs and threatened to be killed for refusing to do so based on personal and moral grounds.” No party contends the BIA’s articulation of this proposed social group as “Hondurans fearful of gang influence” was error. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)

2 16-70514 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 Conde

Quevedo, 947 F.3d at 1243 (substantial evidence supported the agency’s

determination that petitioner’s proposed social group was not cognizable because

of the absence of society-specific evidence of social distinction).

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

Garcia Torres failed to show it is more likely than not he will be tortured by or

with the consent or acquiescence of the government if returned to Honduras. See

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

“state action” for CAT relief).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

(failure to contest issue in opening brief resulted in waiver). To the extent Garcia Torres raises, in his opening brief, contentions as to a new formulated anti-gang particular social group, we lack jurisdiction to consider them. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency).

3 16-70514