Haroldo Pineda v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-72229
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAROLDO DAVID PINEDA, No. 16-72229

Petitioner, Agency No. A095-773-432

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, HAWKINS and McKEOWN, Circuit Judges.

Haroldo David Pineda, a native and citizen of Guatemala, petitions pro se

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

Pineda’s appeal from an immigration judge’s decision denying Pineda’s

applications for cancellation of removal, asylum, withholding of removal, and

* 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). relief under the Convention Against Torture (“CAT”). We have jurisdiction under

8 U.S.C. § 1252(a)(1), and we deny the petition.

We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163,

1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s

interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371

F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency’s

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

Vasquez’s asylum claim fails because he filed his asylum application outside

the one-year deadline, and the record does not compel the conclusion that he

established changed or extraordinary circumstances to excuse the untimely filing.

8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4)-(5); see Antonio-Martinez v.

INS, 317 F.3d 1089, 1093 (9th Cir. 2003) (“[I]gnorance of the law is no excuse.”).

The BIA did not err in finding that Pineda did not 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))); see also Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019)

(returnees with perceived wealth is not a cognizable social group). Substantial

2 evidence supports the agency’s conclusion that Pineda otherwise failed to establish

he would be persecuted 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”). 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). Thus, Pineda’s withholding of removal claim

fails.

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

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

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

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

1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not establish the

necessary “state action” for CAT relief).

Pineda waived any challenge to the agency’s denial of his cancellation of

removal claim by omitting it from his opening brief. Martinez-Serrano v. INS, 94

F.3d 1256, 1259-60 (9th Cir. 1996).

PETITION FOR REVIEW DENIED.