Oscar Gonzalez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 25, 2019
• Docket: 14-72283
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OSCAR FELIPE GONZALEZ, No. 14-72283

Petitioner, Agency No. A089-245-668

v. MEMORANDUM * WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted June 11, 2019 San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District Judge.

Oscar Felipe Gonzalez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal of an

immigration judge’s order of removal and denial of his application for withholding

of removal. We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. factual determinations for substantial evidence, and we review questions of law de

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

the petition for review.

Substantial evidence supports the BIA’s determination that Gonzalez failed

to meet his burden of establishing by clear and convincing evidence that he entered

the United States lawfully. Gonzalez’s primary evidence regarding the time, place,

and manner of his entry was his testimony, which was inconsistent with his own

prior sworn asylum application in which he admitted entering in both 1989 and

1994 without inspection. See Covarrubias-Mendoza v. Barr, 753 F. App’x 490,

490 (9th Cir. 2019); see also 8 U.S.C. § 1229a(c)(2); 8 C.F.R. § 1240.8(c).

Gonzalez also is removable as an alien convicted of a crime involving moral

turpitude, which was neither challenged below nor raised on appeal. See 8 U.S.C.

§ 1182(a)(2)(A)(i)(I); see also Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5

(9th Cir. 2013) (noting that failure to contest issue in opening brief resulted in

waiver).

The BIA did not err in finding that Gonzalez failed to establish membership

in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (“The 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-,

2 14-72283 26 I. & N. Dec. 227, 237 (BIA 2014))); Molina-Estrada v. INS, 293 F.3d 1089,

1095–96 (9th Cir. 2002) (noting family membership may, in some circumstances,

constitute a social group, but concluding petitioner had not established persecution

on account of family membership). Gonzalez also failed to offer evidence that his

alleged persecutors attributed a political opinion to him. See Sangha v. INS, 103

F.3d 1482, 1488–89 (9th Cir. 1997) (noting that the petitioner “must show that his

persecutors actually imputed a political opinion to him”). Gonzalez’s withholding

of removal claim therefore fails.

PETITION FOR REVIEW DENIED.

3 14-72283