Guillermo Gomez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2021
• Docket: 17-73006
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUILLERMO ENRIQUE GOMEZ, No. 17-73006

Petitioner, Agency No. A213-014-525

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

Respondent.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Guillermo Enrique Gomez, a native and citizen of Guatemala, petitions for

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

from an immigration judge’s decision denying his application for withholding of

removal and relief under the Convention Against Torture (“CAT”). Our

* 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). 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

review de novo claims of due process violations in immigration proceedings.

Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in

part the petition for review.

The agency did not err in concluding that Gomez did not establish

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

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))). Substantial evidence

supports the BIA’s determination that Gomez otherwise failed to establish the

harm he fears in Guatemala 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”).

2 17-73006 Gomez’s contention that the BIA failed to consider evidence of the visibility

of his decorative, not gang-related tattoos in its withholding analysis fails as

unsupported by the record. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir.

2010) (the agency need not write an exegesis on every contention); Fernandez v.

Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the

presumption that the BIA reviewed the record).

To the extent Gomez raises a new proposed particular social group in his

opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d

674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented

to the agency).

Thus, Gomez’s withholding of removal claim fails.

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

Gomez failed to show it is more likely than not he would be tortured by or with the

consent or acquiescence of the government if he returned to Guatemala. See

Andrade v. Lynch, 798 F.3d 1242, 1244-45 (9th Cir. 2015) (substantial evidence

supported the agency’s finding that petitioner being deported from a wealthier

country with “decorative, not gang-related” tattoos failed to establish a clear

probability of torture).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 17-73006