Hermelindo Mora-Mendoza v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 2020
• Docket: 17-72589
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HERMELINDO MORA-MENDOZA, AKA No. 17-72589 Juan Ramirez-Hernandez, Agency No. A087-429-163 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Hermelindo Mora-Mendoza, a native and citizen of Mexico, petitions for

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

from an immigration judge’s (“IJ”) decision denying his application for

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

* 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). We have jurisdiction under 8 U.S.C. § 1252. 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. Garcia-Milian v. Holder,

755 F.3d 1026, 1031 (9th Cir. 2014). We deny the petition for review.

Mora-Mendoza does not challenge, and therefore waives, the agency’s

determination that he failed to establish past persecution in Mexico. See Lopez-

Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically

raised and argued in a party’s opening brief are waived).

The agency did not err in finding that Mora-Mendoza 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 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))); Kwong v. Holder, 671 F.3d 872, 876 (9th

Cir. 2011) (where the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA

1994) and does not express disagreement with any part of the IJ’s decision, the

BIA adopts the IJ’s decision in its entirety); see also Ramirez-Munoz v. Lynch, 816

2 17-72589 F.3d 1226, 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans”

returning to Mexico does not constitute a particular social group). Substantial

evidence supports the agency’s determination that Mora-Mendoza otherwise failed

to demonstrate a nexus between the harm he fears in Mexico and 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”). Thus, Mora-

Mendoza’s withholding of removal claim fails.

Mora-Mendoza requests that we revisit Delgado-Ortiz v. Holder, 600 F.3d

1148 (9th Cir. 2010) and Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016),

but a three-judge panel cannot overrule circuit precedent in the absence of an

intervening decision from a higher court or en banc decision of this court. See

Aleman Gonzalez v. Barr, 955 F.3d 762, 765 (9th Cir. 2020)..

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

Mora-Mendoza 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 Mexico. See

Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of

torture).

Mora-Mendoza’s request to remand, set forth in his reply brief, is denied.

See Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th Cir. 2019) (notice to

3 17-72589 appear need not include time and date of hearing to vest jurisdiction in the

immigration court).

PETITION FOR REVIEW IS DENIED.

4 17-72589