Lopez-Franco v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2023
• Docket: 21-929
• Status: Unpublished

Opinion

Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 1 of 5

NOT FOR PUBLICATION FILED APR 19 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FABRICIO LOPEZ-FRANCO, No. 21-929

Petitioner, Agency No. A208-412-425

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

Respondent.

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

Submitted April 17, 2023 San Francisco, California

Before: VANDYKE and SANCHEZ, Circuit Judges, and VRATIL, District Judge.

Petitioner Fabricio Lopez-Franco, a native and citizen of Mexico, seeks

review of a decision of the Board of Immigration (“BIA”) affirming the 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).  The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 2 of 5

of the Immigration Judge (“IJ”), who denied his applications for asylum,

withholding of removal, protection under the Convention Against Torture

(“CAT”), cancellation of removal, and special rule cancellation.1 We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.

We review agency denials of asylum and withholding of removal for

substantial evidence, i.e. whether agency findings are “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Yali

Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quotation marks and

citations omitted). The agency’s “factual findings are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

Villavicencio v. Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018) (quotation marks

and citation omitted). Whether a group constitutes a particular social group is a

question of law we review de novo. Santos-Ponce v. Wilkinson, 987 F.3d 886,

890 (9th Cir. 2021).

1. The BIA denied petitioner’s asylum and withholding of removal

claims based on the particular social group of “men resisting gang recruitment”

on the ground that the group was not cognizable. We have previously rejected

proposed particular social groups based on resistance to gang recruitment for

lack of social distinction and/or particularity. See Santos-Ponce, 987 F.3d at

1 Petitioner does not challenge the BIA’s denial of CAT protection.

2 Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 3 of 5

890; Ramos-Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009). We

conclude that petitioner failed to show that his proposed social group of “men

resisting gang recruitment” is socially distinct and defined with particularity.

2. Substantial evidence supports the BIA’s determination that

petitioner’s relationship to his brother did not give rise to a well-founded fear of

harm. Relying on Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006), petitioner

contends that the IJ and BIA impermissibly assumed facts not in the record—

namely, that his other siblings who remain in Mexico have not been harmed—

reliance on which petitioner had received no notice. “To prevail on a due

process challenge to deportation proceedings, [the petitioner] must show error

and substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). At

the merits hearing and in briefing before the agency, petitioner was provided an

opportunity to explain what harm he or his siblings have experienced as a result

of their connection to his brother. He could not do so. The record does not

support petitioner’s contention that the agency erred.

3. Petitioner argues that in denying his applications for cancellation of

removal and special rule cancellation, the IJ and the BIA constitutionally erred

by failing to consider relevant evidence. We review questions of law de novo.

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). “To prevail on a due

process challenge to deportation proceedings, [petitioner] must show error and

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substantial prejudice.” Lata, 204 F.3d at 1246 (citations omitted).

In denying petitioner’s applications, the BIA understood petitioner’s

hardship arguments, reviewed the record, and concluded that he had not met his

burden of establishing emotional hardship if removed to Mexico. Larita-

Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000) (petitioner must

overcome presumption that BIA reviewed record). The BIA did not err in this

regard. See Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (“[T]he

[BIA] does not have to write an exegesis on every contention. What is required

is merely that it consider the issues raised, and announce its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought

and not merely reacted.” (quotation marks and citation omitted)).

4. Finally, petitioner argues that the IJ abandoned his role as a neutral

factfinder and that the BIA failed to address this issue on appeal. Petitioner has

not established, however, that the IJ’s alleged bias “affect[ed] the outcome of the

proceedings.” United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.

1986). The BIA reasonably concluded that because “the emotional and minimal

financial disruption caused by [petitioner]’s removal is not, on this record,

beyond the typical,” petitioner had not demonstrated prejudice. See

Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (“[I]f the

factual record adequately supports the denial of an [immigrant]’s application for

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relief, we cannot find that the alleged bias held by the IJ was the basis for the

denial of the application.” (citation omitted)).

PETITION DENIED.