Juan Escobedo Aguilera v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 2022
• Docket: 19-73068
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 15 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN ESCOBEDO AGUILERA, No. 19-73068

Petitioner, Agency No. A079-391-853

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 11, 2022 Pasadena, California

Before: BENNETT and SUNG, Circuit Judges, and FOOTE,** District Judge.

Juan Escobedo Aguilera, 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 applications for cancellation of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. removal, asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252.

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. Conde Quevedo v. Barr, 947 F.3d 1238,

1241-42 (9th Cir. 2020). We review for substantial evidence the agency’s factual

findings. Id. at 1241. We review de novo questions of law and constitutional

claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny

in part and dismiss in part the petition for review.

In Escobedo Aguilera’s opening brief he does not raise, and therefore

waives, any challenges to the BIA’s 2019 determinations regarding his alienage

and inadmissibility. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th

Cir. 2013). To the extent Escobedo Aguilera argues that the IJ erred in deeming

him credible with regard to alienage and inadmissibility, but not credible with

regard to his applications for relief, that argument is unexhausted because he failed

to raise this to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004).

Escobedo Aguilera challenges only the agency’s denial of his applications

for withholding of removal and protection under CAT. Because Escobedo

Aguilera does not challenge the agency’s determinations that he is ineligible for

2 19-73068 cancellation of removal and asylum, these claims are waived. See Lopez-Vasquez,

706 F.3d at 1079-80.

Substantial evidence supports the agency’s determination that Escobedo

Aguilera did not suffer past persecution because, for example, he conceded he was

never harmed in Mexico. See 8 C.F.R. § 1208.16(b) (in the absence of past

persecution, there is no presumption of future persecution, and the applicant must

show it is more likely than not that he would be persecuted on account of a

protected ground).

The agency did not err in concluding that Escobedo Aguilera failed to

establish his membership in a cognizable particular social group, because his

proposed social group is too broad to be cognizable. See Barbosa v. Barr, 926

F.3d 1053, 1059-60 (9th Cir. 2019) (proposed particular social group of individuals

returning to Mexico from the U.S. who are believed to be wealthy is too broad);

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (“imputed wealthy

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

Thus, his withholding of removal claim fails.

To the extent Escobedo Aguilera contends that the agency failed to address

persecution on the basis of political opinion, the agency did not err because

Escobedo Aguilera withdrew his political opinion claim at the merits hearing and

3 19-73068 the IJ did not reach the issue. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th

Cir. 2010).

Substantial evidence supports the agency’s denial of CAT protection

because Escobedo Aguilera 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 Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010)

(evidence of crime and violence that was not specific to petitioner was insufficient

to establish CAT eligibility).

We lack jurisdiction to review Escobedo Aguilera’s claims that the IJ’s

conduct violated his due process rights because he did not exhaust them before the

agency. Sanchez-Cruz v. INS, 255 F.3d 775, 779-80 (9th Cir. 2001).

In light of this disposition, we do not reach Escobedo Aguilera’s remaining

contentions regarding the agency’s adverse credibility determination. See

Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

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

mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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