Mario Antunez-Salgado v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 13, 2018
• Docket: 15-72633
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIO ANTUNEZ-SALGADO, No. 15-72633

Petitioner, Agency No. A076-643-866

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted July 10, 2018**

Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.

Mario Antunez-Salgado, 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 asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”),

* 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). motion for a continuance, voluntary departure, and administrative closure. Our

jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.

2008). We review for abuse of discretion the agency’s denial of a motion to

continue, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008), and we

review de novo questions of law, Mendez-Mendez v. Mukasey, 525 F.3d 828, 832

(9th Cir. 2008). We deny in part and dismiss in part the petition for review.

As to Antunez-Salgado’s claim based on his family as a protected ground,

substantial evidence supports the agency’s determination that Antunez-Salgado

failed to demonstrate a nexus between the harm he fears and his family

membership. 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 has no nexus to a protected ground”). As to

Antunez-Salgado’s claim based on the social group of Mexican returnees

perceived as wealthy, the agency did not err in finding that Antunez-Salgado failed

to demonstrate that this was a cognizable group. See Ramirez-Munoz v. Holder,

816 F.3d 1226, 1228-29 (9th Cir. 2016) (concluding “imputed wealthy Americans”

returning to Mexico did not constitute a particular social group); Delgado-Ortiz v.

2 15-72633 Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (concluding “returning Mexicans

from the United States” did not constitute a particular social group). Thus,

Antunez-Salgado’s asylum and withholding of removal claims fail.

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

Antunez-Salgado failed to show it is more likely than not that he would be tortured

by or with the consent or acquiescence of the government of Mexico. See

Ramirez-Munoz, 816 F.3d at 1230.

The agency did not abuse its discretion in denying Antunez-Salgado’s

motion for a continuance. See Sandoval-Luna, 526 F.3d at 1247 (finding agency

did not abuse its discretion in denying a continuance where relief was not

immediately available); Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 812-16 (BIA

2012) (discussing how a petitioner may establish prima facie eligibility for a U visa

such that a continuance or remand might be warranted). Antunez-Salgado points

to no error in the agency’s denial of administrative closure.

We lack jurisdiction to review the agency’s discretionary denial of voluntary

departure. See 8 U.S.C. § 1229c(f); Corro-Barragan v. Holder, 718 F.3d 1174,

1177 (9th Cir. 2013) (the court's jurisdiction over challenges to the denial of

voluntary departure is limited to constitutional claims or questions of law).

3 15-72633 We also lack jurisdiction to review Antunez-Salgado’s contention as to the

IJ’s denial of cancellation of removal because he failed to raise it to the BIA, see

Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (the court lacks

jurisdiction to review claims not exhausted before the agency; when an alien files a

brief with the BIA, he will be deemed to have exhausted only the issues raised and

argued in the brief), and his contention as to the new social group he proposes for

the first time in his opening brief, see Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004) (exhaustion is mandatory and jurisdictional).

Finally, we reject, as unsupported by the record Antunez-Salgado’s

contention that the agency violated his due process rights. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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