Gonzalez-Rodriguez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 28, 2023
• Docket: 21-1188
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JOSE GUADALUPE GONZALEZ- No. 21-1188 RODRIGUEZ, Agency No. A 200-569-613 Petitioner,

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

Respondent.

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

Submitted June 5, 2023** Pasadena, California

Before: M. SMITH, HAMILTON***, and COLLINS, Circuit Judges.

Jose Guadalupe Gonzalez-Rodriguez, a citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) upholding the

order of an Immigration Judge (“IJ”) denying his application for withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable David Frank Hamilton, United States Circuit Judge for the Seventh Circuit, sitting by designation. removal and ordering him removed to Mexico.1 We have jurisdiction under § 242

of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. We deny the

petition.

The BIA concluded that Gonzalez-Rodriguez’s brief did not “meaningfully”

challenge the IJ’s adverse credibility determination, and the Government argues

that we therefore should not consider this inadequately exhausted issue. Given that

the Supreme Court has now clarified that such a failure to exhaust is not a

jurisdictional defect, see Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1111 (2023),

we need not resolve this issue. The IJ alternatively found that, even assuming that

Gonzalez-Rodriguez’s testimony was credible, his withholding claim failed on

multiple grounds, including that his proposed social group of “business owners

unable to meet extortion demands” is not cognizable and that he had failed to

establish a nexus to any protected ground. The BIA also specifically affirmed the

IJ’s determinations on these points. We conclude that substantial evidence

supports those determinations.

1 The IJ found that Gonzalez-Rodriguez’s asylum application was untimely, and the IJ also denied, on the merits, his request for relief under the Convention Against Torture. Gonzalez-Rodriguez did not challenge the denial of asylum in his brief to the BIA, and the BIA therefore did not address that claim. Gonzalez- Rodriguez’s opening brief in this court does not challenge either the agency’s denial of asylum or its denial of relief under the Convention Against Torture. We therefore deem those issues to be forfeited. See Escobar Santos v. Garland, 4 F.4th 762, 764 n.1 (9th Cir. 2021).

2 1. Gonzalez-Rodriguez contended that he was persecuted for being a

member of the group “business owners unable to meet extortion demands.”2 The

agency properly concluded that Gonzalez-Rodriguez had failed to show that this

proposed social group was cognizable under the standards set forth in our caselaw.

See Macedo Templos v. Wilkinson, 987 F.3d 877, 881–83 (9th Cir. 2021) (holding

that proposed social group of “Mexican wealthy business owners who do not

comply with extortion attempts” is not cognizable); see also Ochoa v. Gonzales,

406 F.3d 1166, 1170–71 (9th Cir. 2005) (reaching a similar conclusion as to a

proposed social group of “business owners in Colombia who rejected demands by

narco-traffickers to participate in illegal activity”). Gonzalez-Rodriguez presented

evidence that extortion against business owners is widespread in Mexico, but that

does not establish that Mexican society perceives his proposed group to be “a

distinct group.” Macedo Templos, 987 F.3d at 882. Moreover, Gonzalez-

Rodriguez failed to establish that merely being some sort of business owner is “an

immutable characteristic” that is “fundamental to an individual’s identity.” Id. at

882–83.

2. Substantial evidence supports the agency’s alternative holding that

2 Before this court, Gonzalez-Rodriguez attempts to change his proposed social group to either “business owners who have experienced extortion” or “former business owners.” But this is not the proposed social group that he presented to the agency. He has therefore failed to exhaust that claim before the agency and we decline to consider it.

3 Gonzalez-Rodriguez failed to show a nexus between his proposed social group and

his alleged past or feared persecution. The agency concluded that the “members of

the Zeta criminal organization” who extorted him did so simply because he had

money and that they had no interest in anything about him “beyond the fact that he

may be able to supply money.” That was a reasonable reading of the record

evidence that we cannot set aside. See 8 U.S.C. § 1252(b)(4)(B) (stating that the

agency’s “findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary”). Based on that finding, the agency

properly concluded that Gonzalez-Rodriguez had failed to establish a nexus to a

protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An

alien’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.”).

PETITION DENIED.