NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
A.E.H., No. 23-397 Agency No. Petitioner, A207-237-160 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 8, 2024** Pasadena, California
Before: SILER***, GOULD, and BEA, Circuit Judges.
A.E.H., a native and citizen of Mexico, petitions for review of an immigration
judge’s (IJ) order that affirmed an asylum officer’s (AO) adverse reasonable fear
* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. determination. The AO’s reasonable fear determination was made following the
Department of Homeland Security’s (DHS) issuance of a Final Administrative
Removal Order (FARO) based on Petitioner’s removability as an alien convicted of
an aggravated felony (possession of methamphetamine for sale). The parties are
familiar with the facts, so we do not recount them here.
Under the so-called “criminal alien bar,” see Kucana v. Holder, 558 U.S. 233,
246 (2010), we lack jurisdiction to review “any final order of removal against an
alien who is removable by reason of having committed” an aggravated felony, 8
U.S.C. § 1252(a)(2)(C), but we retain jurisdiction to review “constitutional claims
or questions of law raised upon a petition for review,” 8 U.S.C. § 1252(a)(2)(D); see
also Tapia Coria v. Garland, No. 22-970, slip op. at 32 (9th Cir. Mar. 19, 2024).
We review questions of law de novo. See Hoque v. Ashcroft, 367 F.3d 1190, 1195
(9th Cir. 2004). We deny the petition.1
We conclude that Petitioner is removable based on a conviction covered by
§ 1252(a)(2)(C). Petitioner was convicted of possession for sale of
methamphetamine in violation of California Health and Safety Code § 11378.
DHS’s FARO charged him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)
because he was convicted for an aggravated felony as defined in 8 U.S.C.
1 We deny Petitioner’s motion for a stay of removal and supplemental motion for a stay of removal (Docket Entry Nos. 3, 8).
2 § 1101(a)(43)(B). See United States v. Verduzco-Rangel, 884 F.3d 918, 923 (9th
Cir. 2018) (holding violation of California Health and Safety Code § 11378 is
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(b) if the substance involved is
methamphetamine). Petitioner failed to challenge DHS’s determination that he is
removable as an aggravated felon before the AO or IJ, and the government properly
raised his failure to exhaust his administrative remedies. See Santos-Zacaria v.
Garland, 598 U.S. 411, 416–19 (2023); Umana-Escobar v. Garland, 69 F.4th 544,
550 (9th Cir. 2023). Thus, “it is undisputed that [Petitioner’s] conviction . . . triggers
§ 1252(a)(2)(C).” See Tapia Coria, slip op. at 8.
Because Petitioner is removable as an aggravated felon, the criminal alien bar
of § 1252(a)(2)(C) strips us of jurisdiction over the IJ’s denial of asylum and
withholding of removal relief unless an exception applies. See Tapia Coria, slip op.
at 17 n.3. Here, an exception to the criminal alien bar applies. Petitioner argues that
his statements to the AO that he “cooperat[ed] with U.S. law enforcement officials
against drug operations of cartel members in Mexico and their associates . . . make[]
him a member of a particular social group with a well-founded future fear of being
persecuted on account of it.” “Whether a group constitutes a particular social group
is a question of law.” Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014)
(internal quotation marks omitted). Petitioner thereby raises a question of law:
“given th[e]se facts, is there a particular social group?” See Conde Quevedo v. Barr,
3 947 F.3d 1238, 1242 (9th Cir. 2020) (internal quotation marks omitted). We
therefore have jurisdiction to review this question of law. See 8 U.S.C.
§ 1252(a)(2)(D).
To establish membership in a particular social group, an alien 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.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014).
“To have the ‘social distinction’ necessary to establish a particular social group,
there must be evidence showing that society in general perceives, considers, or
recognizes persons sharing the particular characteristic to be a group.” Matter of
W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014).
The IJ properly concluded that there was “no reasonable possibility
[Petitioner] would be able to establish the social distinction prong required to
establish membership in a particular social group.” As the IJ correctly noted,
“individuals [who] testify in open court against a gang or cartel may constitute a
particular social group.” Here, the IJ referenced our decision in Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (en banc), on which Petitioner
improperly relies. In Henriquez-Rivas, we held a proposed particular social group,
“people who testify against gang members in criminal proceedings,” could be
sufficiently particular and socially distinct to constitute a cognizable particular social
4 group. Id. Unlike the facts of Henriquez-Rivas, in Petitioner’s reasonable fear
interview, he confirmed that he did not testify against his former associate in
criminal proceedings. Petitioner therefore misstates the holding of Henriquez-Rivas
when he maintains that “this Court held en banc in Henriquez-Rivas that a person
who cooperates with law enforcement officials can satisfy all of the prerequisites for
establishing membership in a particular social group.”
Petitioner identifies no legal or constitutional error in the IJ’s conclusion that
informants who cooperate privately with U.S. law enforcement are not a group that
Mexican society perceives, considers, or recognizes as composed of persons sharing
a particular characteristic. See Matter of W-G-R-, 26 I. & N.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
A.E.H., No. 23-397 Agency No. Petitioner, A207-237-160 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted April 8, 2024** Pasadena, California
Before: SILER***, GOULD, and BEA, Circuit Judges.
A.E.H., a native and citizen of Mexico, petitions for review of an immigration
judge’s (IJ) order that affirmed an asylum officer’s (AO) adverse reasonable fear
* 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. determination. The AO’s reasonable fear determination was made following the
Department of Homeland Security’s (DHS) issuance of a Final Administrative
Removal Order (FARO) based on Petitioner’s removability as an alien convicted of
an aggravated felony (possession of methamphetamine for sale). The parties are
familiar with the facts, so we do not recount them here.
Under the so-called “criminal alien bar,” see Kucana v. Holder, 558 U.S. 233,
246 (2010), we lack jurisdiction to review “any final order of removal against an
alien who is removable by reason of having committed” an aggravated felony, 8
U.S.C. § 1252(a)(2)(C), but we retain jurisdiction to review “constitutional claims
or questions of law raised upon a petition for review,” 8 U.S.C. § 1252(a)(2)(D); see
also Tapia Coria v. Garland, No. 22-970, slip op. at 32 (9th Cir. Mar. 19, 2024).
We review questions of law de novo. See Hoque v. Ashcroft, 367 F.3d 1190, 1195
(9th Cir. 2004). We deny the petition.1
We conclude that Petitioner is removable based on a conviction covered by
§ 1252(a)(2)(C). Petitioner was convicted of possession for sale of
methamphetamine in violation of California Health and Safety Code § 11378.
DHS’s FARO charged him as removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii)
because he was convicted for an aggravated felony as defined in 8 U.S.C.
1 We deny Petitioner’s motion for a stay of removal and supplemental motion for a stay of removal (Docket Entry Nos. 3, 8).
2 § 1101(a)(43)(B). See United States v. Verduzco-Rangel, 884 F.3d 918, 923 (9th
Cir. 2018) (holding violation of California Health and Safety Code § 11378 is
“aggravated felony” under 8 U.S.C. § 1101(a)(43)(b) if the substance involved is
methamphetamine). Petitioner failed to challenge DHS’s determination that he is
removable as an aggravated felon before the AO or IJ, and the government properly
raised his failure to exhaust his administrative remedies. See Santos-Zacaria v.
Garland, 598 U.S. 411, 416–19 (2023); Umana-Escobar v. Garland, 69 F.4th 544,
550 (9th Cir. 2023). Thus, “it is undisputed that [Petitioner’s] conviction . . . triggers
§ 1252(a)(2)(C).” See Tapia Coria, slip op. at 8.
Because Petitioner is removable as an aggravated felon, the criminal alien bar
of § 1252(a)(2)(C) strips us of jurisdiction over the IJ’s denial of asylum and
withholding of removal relief unless an exception applies. See Tapia Coria, slip op.
at 17 n.3. Here, an exception to the criminal alien bar applies. Petitioner argues that
his statements to the AO that he “cooperat[ed] with U.S. law enforcement officials
against drug operations of cartel members in Mexico and their associates . . . make[]
him a member of a particular social group with a well-founded future fear of being
persecuted on account of it.” “Whether a group constitutes a particular social group
is a question of law.” Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014)
(internal quotation marks omitted). Petitioner thereby raises a question of law:
“given th[e]se facts, is there a particular social group?” See Conde Quevedo v. Barr,
3 947 F.3d 1238, 1242 (9th Cir. 2020) (internal quotation marks omitted). We
therefore have jurisdiction to review this question of law. See 8 U.S.C.
§ 1252(a)(2)(D).
To establish membership in a particular social group, an alien 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.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 251–52 (BIA 2014).
“To have the ‘social distinction’ necessary to establish a particular social group,
there must be evidence showing that society in general perceives, considers, or
recognizes persons sharing the particular characteristic to be a group.” Matter of
W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014).
The IJ properly concluded that there was “no reasonable possibility
[Petitioner] would be able to establish the social distinction prong required to
establish membership in a particular social group.” As the IJ correctly noted,
“individuals [who] testify in open court against a gang or cartel may constitute a
particular social group.” Here, the IJ referenced our decision in Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (en banc), on which Petitioner
improperly relies. In Henriquez-Rivas, we held a proposed particular social group,
“people who testify against gang members in criminal proceedings,” could be
sufficiently particular and socially distinct to constitute a cognizable particular social
4 group. Id. Unlike the facts of Henriquez-Rivas, in Petitioner’s reasonable fear
interview, he confirmed that he did not testify against his former associate in
criminal proceedings. Petitioner therefore misstates the holding of Henriquez-Rivas
when he maintains that “this Court held en banc in Henriquez-Rivas that a person
who cooperates with law enforcement officials can satisfy all of the prerequisites for
establishing membership in a particular social group.”
Petitioner identifies no legal or constitutional error in the IJ’s conclusion that
informants who cooperate privately with U.S. law enforcement are not a group that
Mexican society perceives, considers, or recognizes as composed of persons sharing
a particular characteristic. See Matter of W-G-R-, 26 I. & N. at 217; see also Matter
of H-L-S-A-, 28 I. & N. Dec. 228, 237 (BIA 2021) (“[C]ooperation with law
enforcement may satisfy the requirement[] of . . . social distinction and establish a
valid particular social group . . . if the cooperation is public in nature, particularly
where testimony was given in public court proceedings, and the evidence in the
record reflects that the society in question recognizes and provides protection for
such cooperation.”) (emphasis added). Petitioner argues that his statements to the
AO at his reasonable fear interview “at least strongly suggested that [his former
associate] perceived [him] to be cooperating with law enforcement agencies,” but
whether his former associate so perceived this has no bearing on whether Mexican
society would perceive, consider, or recognize Petitioner to be a member of a
5 socially distinct group. Hence, Petitioner’s argument that the IJ legally erred
because it impermissibly speculated and conjectured that Petitioner’s former
associate “could not have [learned that he cooperated with the Drug Enforcement
Agency (DEA)] because the DEA presumably wished to protect that confidential
information” is legally irrelevant.
PETITION DENIED.