Francis Oliva-Zepeda v. Merrick Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCIS GILBERTO OLIVA-ZEPEDA, No. 19-72564

Petitioner, Agency No. A094-386-413

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

Respondent.

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

Submitted March 26, 2021**

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges

Francis Gilberto Oliva-Zepeda, 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 cancellation of

removal and his application for asylum, withholding of removal, relief under the

* 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). Convention Against Torture (“CAT”). 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 dismiss in part and deny in part the

petition for review.

We lack jurisdiction to consider Oliva-Zepeda’s contentions regarding the

agency’s discretionary denial of cancellation of removal. See 8 U.S.C.

§ 1252(a)(2)(B)(i); Monroy v. Lynch, 821 F.3d 1175, 1177-78 (9th Cir. 2016) (this

court lacks jurisdiction to review the agency’s weighing of the equities).

Substantial evidence supports the agency’s determinations that Oliva-Zepeda

failed to file his asylum application within the one-year time limit and did not

establish changed circumstances sufficient to excuse the untimely filing. See 8

U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4).

The agency did not err in concluding that Oliva-Zepeda’s proposed social

groups were not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (in order to demonstrate membership in a particular 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

2 19-72564 within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (BIA 2014))). Substantial evidence supports the agency’s determination that

Oliva-Zepeda did not otherwise establish that the harm he experienced or fears was

or would be on account of a protected ground. See Zetino v. Holder, 622 F.3d

1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from harassment by

criminals motivated by theft or random violence by gang members bears no nexus

to a protected ground”). Oliva-Zepeda’s withholding of removal claim thus fails.

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

Oliva-Zepeda failed to show it is more likely than not he would be tortured by or

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

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

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

mandate. The motion for a stay of removal (Docket Entry No. 1) is otherwise

denied.1

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

1 We lack jurisdiction to consider Oliva-Zepeda’s request for voluntary departure because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

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