Marco Sevilla-Castaneda v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2018
• Docket: 17-70113
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCO ANTONIO SEVILLA- No. 17-70113 CASTANEDA, AKA Antonio Sepulvera Contreras, Agency No. A087-848-413

Petitioner, MEMORANDUM* v.

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Marco Antonio Sevilla-Castaneda, 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 application for

* 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). withholding of removal and relief under the Convention Against Torture (“CAT”).

Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of

law, giving deference 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). We dismiss in part and deny in part the

petition for review.

We lack jurisdiction to address Sevilla-Castaneda’s proposed social group

consisting of “young persons,” his contention about persecution based on political

opinion, and his ineffective assistance of counsel claim because he did not raise

these to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004);

Liu v. Waters, 55 F.3d 421, 424 (9th Cir. 1995) (ineffective assistance of counsel

claim must be raised with the agency first).

The agency did not err in finding that Sevilla-Castaneda’s proposed group of

returning Mexicans who are perceived as wealthy do not constitute a cognizable

group. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016). And

substantial evidence supports the conclusion that Sevilla-Castaneda has not shown

that his life or freedom would be threatened on account of his family. See Zetino v.

Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from

harassment by criminals motivated by theft or random violence by gang members

2 17-70113 bears no nexus to a protected ground.”).

Substantial evidence also supports denial of Sevilla-Castaneda’s CAT claim

because he failed to show that it is more likely than not he would be tortured by or

with the consent or acquiescence of the Mexican government. See Garcia-Milian

v. Holder, 755 F.3d 1026, 1034-35 (9th Cir. 2014).

We reject Sevilla-Castaneda’s argument that the agency violated his due

process rights by failing to apprise him of apparent eligibility for asylum where the

evidence does not indicate “a reasonable possibility that the alien [was] eligible for

relief at the time of the hearing.” United States v. Guzman-Ibarez, 792 F.3d 1094,

1101 (9th Cir. 2015).

Finally, we deny Sevilla-Castaneda’s motion to supplement the record on

appeal (Docket Entry No. 21).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

3 17-70113