Juan Chilel-Chilel v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2019
• Docket: 15-71598
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN CHILEL-CHILEL, AKA Juan No. 15-71598 Chelal, AKA Juan Chelal Chelal, AKA Juan Chilel, AKA J. Chilel Gonsales, AKA J. Agency No. A079-007-948 Chilel Gonsalez, AKA Tomas Chilel Gonzales, AKA Chilel Lopez, MEMORANDUM* Petitioner,

v.

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.

Juan Chilel-Chilel (“Chilel-Chilel”), a native and citizen of Guatemala,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing Chilel-Chilel’s appeal from an immigration judge’s (“IJ”) decision

* 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). denying Chilel-Chilel’s application for asylum, withholding of removal, relief

under the Convention Against Torture (“CAT”), and cancellation of removal. We

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

Where, as here, the BIA adopts the IJ’s reasoning, we review both the IJ’s

and BIA’s decisions. Alanniz v. Barr, 924 F.3d 1061, 1065 (9th Cir. 2019). 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).

Chilel-Chilel waived his asylum claim before this court. See Martinez-

Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically

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

The BIA did not err in finding that Chilel-Chilel 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))). Substantial evidence supports the agency’s

2 15-71598 conclusion that Chilel-Chilel 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, Chilel-Chilel’s withholding of removal claim fails.

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

Chilel-Chilel 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).

The agency correctly concluded that Chilel-Chilel is statutorily ineligible for

cancellation of removal pursuant to INA § 240A(b)(1)(C), 8 U.S.C.

§ 1229b(b)(1)(C), because he was convicted under the California Penal Code

§ 273.5(a), which “is categorically a crime of domestic violence within the

meaning of § 1227(a)(2)(E)(i).” Carrillo v. Holder, 781 F.3d 1155, 1159 (9th Cir.

2015).

PETITION FOR REVIEW DENIED.

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