Jesus Gutierrez Fernandez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2022
• Docket: 17-71182
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JESUS GUTIERREZ FERNANDEZ, AKA No. 17-71182 Jesus Gutierrez, Agency No. A095-728-625 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 11, 2022**

Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges.

Jesus Gutierrez Fernandez, 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 decision denying his application for asylum,

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 for substantial evidence

the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th

Cir. 2020). 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. Id. at 1241-42. We review

de novo claims of due process violations in immigration proceedings. Simeonov v.

Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review.

Substantial evidence supports the agency’s determination that Gutierrez

Fernandez failed to establish that the harm he experienced or fears was or would be

on account of his family membership or imputed political opinion. 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”); see also Ayala v. Holder, 640 F.3d 1095,

1097 (9th Cir. 2011) (even if membership in a particular social group is

established, an applicant must still show that “persecution was or will be on

account of his membership in such group”).

The agency did not err in concluding that Gutierrez Fernandez’s returnee-

based social group was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131

(9th Cir. 2016) (to demonstrate membership in a particular social group, an

applicant must “establish that the group is (1) composed of members who share a

2 17-71182 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 Delgado-Ortiz v. Holder, 600 F.3d 1148,

1151-52 (9th Cir. 2010) (proposed social group “returning Mexicans from the

United States” lacked particularity).

Thus, Gutierrez Fernandez’s asylum and withholding of removal claims fail.

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

Gutierrez Fernandez 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

Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too

speculative).

Gutierrez Fernandez’s contentions that the agency violated his right to due

process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and

prejudice are required to prevail on a due process claim); see also Fernandez v.

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

presumption that the BIA reviewed the record).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

3 17-71182