Jose Piedras-Santiago v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2020
• Docket: 18-71107
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS PIEDRAS-SANTIAGO, AKA No. 18-71107 Jose Luis Pierdas-Santiago, Agency No. A205-297-574 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Jose Luis Piedras-Santiago, 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 applications for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), 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). cancellation of removal, and the BIA’s denial of his motion to remand. Our

jurisdiction is governed by 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 review for abuse of discretion the BIA’s

denial of a motion to remand. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th

Cir. 2005). We dismiss in part and deny in part the petition for review.

We lack jurisdiction to consider Piedras-Santiago’s proposed social group

based on family because he failed to raise it before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review

claims not presented to the agency).

The agency did not err in finding that Piedras-Santiago 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 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)

2 18-71107 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,

1059-60 (9th Cir. 2019) (finding that individuals returning to Mexico from the

United States who are believed to be wealthy does not constitute a particular social

group); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010)

(concluding “returning Mexicans from the United States” did not constitute a

particular social group).

Substantial evidence supports the BIA’s determination that Piedras-Santiago

otherwise failed to establish that the harm he fears in Mexico 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”).

Thus, Piedras-Santiago’s asylum and withholding of removal claims fail.

In light of this disposition, we do not reach Piedras-Santiago’s contentions

regarding the timeliness of his asylum application. See Simeonov v. Ashcroft, 371

F.3d 532, 538 (9th Cir. 2004) (courts and agencies are not required to decide issues

unnecessary to the results they reach).

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

3 18-71107 Piedras-Santiago failed to show it is more likely than not he would 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).

As to cancellation of removal, we lack jurisdiction to review the agency’s

discretionary determination that Piedras-Santiago failed to show exceptional and

extremely unusual hardship to a qualifying relative. See 8 U.S.C.

§ 1252(a)(2)(B)(i); see also Arteaga-De Alvarez v. Holder, 704 F.3d 730, 735-36

(9th Cir. 2012) (court lacks jurisdiction to review merits of hardship determination

and only retains jurisdiction over constitutional claims that have “some possible

validity” (internal quotation marks and citation omitted)).

The BIA did not abuse its discretion in denying Piedras-Santiago’s motion

to remand to consider additional evidence for cancellation of removal, where he

failed to demonstrate prima facie eligibility for relief. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (“The BIA is entitled to deny

a motion to reopen where the applicant fails to demonstrate prima facie eligibility

for the underlying relief.”); see also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063

(9th Cir. 2008) (“The formal requirements for a motion to reopen and a motion to

4 18-71107 remand are the same.”).

Finally, Piedras-Santiago’s request, raised in his opening brief, to remand for

consideration of new evidence is denied.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

5 18-71107