Quim-Xicara v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2023
• Docket: 22-2024
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIO ROBERTO QUIM-XICARA, No. 22-2024 Agency No. Petitioner, A205-717-108 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 10, 2023**

Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Julio Roberto Quim-Xicara, a native and citizen of Guatemala, petitions for

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

from an immigration judge’s decision denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020).

We review for substantial evidence the agency’s factual findings. Id. at 1241. We

deny the petition for review.

Because Quim-Xicara concedes that the asylum application is untimely and

that he did not establish changed or extraordinary circumstances to excuse the

untimely filing, this issue is waived. See Rios v. Lynch, 807 F.3d 1123, 1125 n.1

(9th Cir. 2015) (issues not specifically raised and argued in a party’s opening brief

are waived).

The BIA did not err in concluding that Quim-Xicara failed to establish

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

1125, 1131 (9th Cir. 2016) (to demonstrate membership in a particular 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))); see also Conde Quevedo, 947 F.3d at 1243

(proposed particular social group not cognizable given absence of society-specific

evidence of social distinction).

2 22-2024 We do not consider Quim-Xicara’s imputed political opinion claim or any

other proposed protected grounds because the BIA did not decide the issues, see

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited

to the grounds relied on by the BIA), and Quim-Xicara does not contend the BIA

erred in finding that these claims were not properly before it, see Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). Thus, Quim-Xicara’s

withholding of removal claim fails.

In light of this disposition, we need not reach Quim-Xicara’s remaining

contentions regarding his eligibility for asylum and withholding of removal. See

Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (courts and agencies are

not required to decide issues unnecessary to the results they reach).

Substantial evidence supports the agency’s denial of CAT protection

because Quim-Xicara 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 Guatemala.

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

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

3 22-2024