Geronimo Marcos-Santiago v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2022
• Docket: 16-71596
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERONIMO MARCOS-SANTIAGO, AKA No. 16-71596 Santiago Geronimo Marcos, AKA Geronimo Marcos Santiago, AKA Marcos Santiago Agency No. A205-299-991 Geronimo, AKA Geronimo Santiago Marcos,

Petitioner, MEMORANDUM*

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 9, 2022** Seattle, Washington

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

Gerónimo Marcos-Santiago petitions for review of the Board of Immigration

Appeals’ (“BIA”) order dismissing his appeal from the immigration judge’s (“IJ”)

* 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). decision denying his application for cancellation of removal, asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing legal questions de novo and

the agency’s factual findings for substantial evidence, see Plancarte Sauceda v.

Garland, 23 F.4th 824, 831 (9th Cir. 2022), we dismiss the petition in part and

deny it in part.

1. We have jurisdiction to review the agency’s decision to deny

cancellation of removal to the extent Marcos-Santiago argues that the IJ

“incorrectly relied on” In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002),

and instead “should have applied” In re Gonzalez Recinas, 23 I. & N. Dec. 467

(B.I.A. 2002). See Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009)

(“[W]hether an IJ failed to apply a controlling standard governing a discretionary

determination is a question over which we have jurisdiction under [8 U.S.C.]

§ 1252(a)(2)(D).”). The IJ did not err by citing Andazola-Rivas, which is one of

“the starting points for any analysis of exceptional and extremely unusual

hardship,” Gonzalez Recinas, 23 I. & N. Dec. at 469, and we deny the petition for

review to the extent Marcos-Santiago argues otherwise.

We lack jurisdiction to review the agency’s decision regarding cancellation

of removal insofar as Marcos-Santiago argues that the BIA’s “application of

[Gonzalez Recinas] to the facts” of his case was “flawed.” See Mendez-Castro,

2 552 F.3d at 979. Similarly, Marcos-Santiago’s argument that the BIA did not

consider a specific factor—his separation from his children—“is inherently

intertwined with the IJ’s assessment of the facts, which we lack jurisdiction to

review.” Id. We therefore dismiss the petition for review to the extent it

challenges these aspects of the BIA’s decision.

2. We deny the petition for review to the extent it challenges the denial of

asylum. The agency found that Marcos-Santiago’s asylum application was

untimely and that he lacked any valid justification for the late filing. These

findings dispose of his asylum claim, and he fails to address them in his brief here.

Therefore, he has forfeited any such challenge. See Gonzalez-Caraveo v. Sessions,

882 F.3d 885, 889 (9th Cir. 2018).

3. We deny the petition for review to the extent it challenges the denial of

withholding of removal. The BIA did not err in finding that Marcos-Santiago

failed to establish “membership in a particular social group.” 8 U.S.C.

§ 1231(b)(3)(A). Marcos-Santiago never clearly identified the particular social

group to which he belongs accounting for any persecution he will suffer in Mexico.

Based on the limited evidence Marcos-Santiago presented, the IJ reasonably

rejected as insufficiently particular a group of returnees whom criminals assaulted

based on the perception that the returnees were “relatively well-to-do.” See

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150, 1151–52 (9th Cir. 2010) (holding

3 that “returning Mexicans from the United States” who were “targeted as victims of

violent crime” is “too broad to qualify as a cognizable social group”); see also

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1227 (9th Cir. 2016) (rejecting proposed

group of “imputed wealthy Americans”).

4. We deny the petition for review to the extent it challenges the denial of

CAT relief. The BIA properly denied CAT relief on waiver grounds. See

Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam) (“[T]he

[BIA] does not per se err when it concludes that arguments raised for the first time

on appeal do not have to be entertained.”). Before the BIA, Marcos-Santiago

failed to challenge the IJ’s dispositive finding “that he did not meet his burden to

show he is more likely than not to be tortured.” The BIA accurately characterized

him as “argu[ing] only that the government acquiesces in torture”—a separate

issue.

PETITION DISMISSED in part and DENIED in part.