Francisco Alvarado-Favela v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-72374
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCISCO ABRAHAM ALVARADO- No. 16-72374 FAVELA, Agency No. A095-662-816 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 7, 2019**

Before: THOMAS, Chief Judge, McKEOWN and HAWKINS, Circuit Judges.

Francisco Abraham Alvarado-Favela, a native and citizen of Mexico,

petitions for review of the Board of Immigrations Appeals’ (BIA) order dismissing

his appeal from an immigration judge’s (IJ) decision denying his applications 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). asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

Whether a group constitutes a “particular social group” is a question of law

that we review de novo. Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).

We review for substantial evidence the agency’s factual findings. Zehatye v.

Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).

The BIA did not err in its conclusion that Alvarado-Favela failed to establish

membership in a cognizable social group. 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 within the society in question’” (quoting Matter of M-E-V-G-, 26

I. & N. Dec. 227, 237 (BIA 2014))); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th

Cir. 2019) (finding that individuals returning to Mexico from the United States

2 who are believed to be wealthy does not constitute a particular social group).

Thus, Alvarado-Favela’s asylum and withholding of removal claims fail.1

Substantial evidence supports the BIA’s determination that Alvarado-Favela

did not establish that he is more likely than not to be tortured by or with the

consent or acquiescence of the government if returned to Mexico. See Aden v.

Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Garcia-Milian v. Holder, 755 F.3d

1026, 1033 (9th Cir. 2014) (concluding that petitioner did not establish the

necessary “state action” for CAT relief). Thus, Alvarado-Favela’s CAT claim fails.

PETITION FOR REVIEW DENIED.

1 Our conclusion is not affected by the differing nexus standards applicable to asylum and withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction between the standards where there was no nexus at all to a protected ground). 3