Nicolas Reyes-Guzman v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2021
• Docket: 20-72954
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICOLAS REYES-GUZMAN, No. 20-72954

Petitioner, Agency No. A213-080-835

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

Respondent.

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

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Nicolas Reyes-Guzman, 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 decision denying his applications for cancellation of removal,

withholding of removal, and 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). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238,

1241 (9th Cir. 2020). 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. Id. at 1241-42. We

dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the agency’s discretionary determination that

Reyes-Guzman did not show exceptional and extremely unusual hardship to a

qualifying relative for purposes of cancellation of removal. See 8 U.S.C.

§ 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

The petition does not raise a colorable legal or constitutional claim over which we

retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at

930.

Substantial evidence supports the agency’s determination that Reyes-

Guzman failed to establish he suffered harm that rises to the level of persecution.

See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 fn. 6 (9th Cir. 2003)

(unspecified threats were insufficient to rise to the level of persecution).

The agency did not err in concluding that Reyes-Guzman did not establish

membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d

1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular

2 20-72954 social 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))). We reject as

unsupported by the record Reyes-Guzman’s contention that the BIA failed to

sufficiently articulate, or otherwise erred in, its cognizability determination.

Reyes-Guzman does not challenge the agency’s determination that he otherwise

failed to establish a nexus to a protected ground. 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).

Thus, Reyes-Guzman’s withholding of removal claim fails.

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

Reyes-Guzman 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

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

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

mandate.

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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