Rito Cruz v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2021
• Docket: 18-72699
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RITO CRUZ, AKA Rito Rahin Cruz No. 18-72699 Sanchez, Agency No. A074-425-351 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

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

Submitted February 9, 2021** Pasadena, California

Before: O’SCANNLAIN, CALLAHAN, and OWENS, Circuit Judges.

Rito Cruz, a native and citizen of Mexico, petitions this Court for review of

the Board of Immigration Appeals’ denial of his claims for withholding of removal

and for relief under the Convention Against Torture (“CAT”). As the facts are

* 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). known to the parties, we repeat them only as necessary to explain our decision.

I

The Board of Immigration Appeals (“BIA”) properly concluded that Cruz is

ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3). Cruz’s

proposed social group of “former drug cartel workers who became confidential

informants” is not legally cognizable because it lacks “social distinction.” See

Reyes v. Lynch, 842 F.3d 1125, 1129, 1135, 1137 (9th Cir. 2016). Cruz has failed

to identify record evidence “showing that [Mexican] society in general perceives”

such persons “to be a group.” Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020)

(quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A. 2014)) (emphasis

added). Whereas he argues that “cartels perceive informants to be a distinct

group,” we have been explicit in clarifying that “social distinction” is “not . . .

assessed from the perspective of the persecutors.” Diaz-Torres v. Barr, 963 F.3d

976, 980 (9th Cir. 2020) (citing Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th

Cir. 2020)). Cruz’s failure to show “social distinction” is dispositive in establishing

that his withholding claim must fail. See Reyes, 842 F.3d at 1131 (applying Matter

of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)).

II

The BIA also properly determined that Cruz is ineligible for relief under

CAT. Cruz failed to meet his burden of showing that, if removed to Mexico, “it is

2 more likely than not that he . . . would be tortured,” and that such torture would be

“inflicted by[,] at the instigation of[,] or with the consent or acquiescence of a

[Mexican] public official acting in an official capacity.” Garcia-Milian v. Holder,

755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. §§ 1208.16(c)(2),

1208.18(a)(1)). Ample record evidence establishes that the Mexican government

investigates crimes, arrests cartel members, and takes other actions to combat

cartel and gang criminality, including with some success. In light of such evidence,

the Mexican government cannot be said to “acquiesce in” torture such as that

feared by Cruz, even if some of its initiatives “ha[ve] been generally ineffective in

preventing . . . criminal activities.” Id. at 1034. Accordingly, “substantial

evidence” supports the BIA’s determination that Cruz “has failed to establish the

state action necessary for CAT relief.” See id. at 1035.

III

Finally, the BIA properly rejected Cruz’s argument that his due-process right

to a “full and fair hearing” was violated when the Immigration Judge (“IJ”) on

remand did not consider new testimony or evidence outside the already-developed

record.

Cruz’s counsel failed to object to the IJ’s decision to proceed on remand

without hearing new testimony or admitting new evidence; indeed, his counsel

affirmatively agreed with the IJ’s assessment that “the factual record’s been fully

3 developed.” As such, Cruz’s due-process challenge is waived. See Garcia v. INS,

222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam) (“It is a longstanding principle

that . . . each party is deemed bound by the acts of his lawyer-agent . . . .” (internal

quotation marks and citations omitted)).

In any event, Cruz’s due-process challenge fails on the merits. He has not

met his burden of showing that the IJ’s “conduct” “prejudiced” him by “potentially

affect[ing] the outcome of the proceedings.” Colmenar v. INS, 210 F.3d 967, 972

(9th Cir. 2000) (citations and alteration omitted). Here, Cruz simply speculates that

if the IJ on remand had allowed him “to present additional testimony regarding

either his membership in a particular social group or his objective fear of returning

to Mexico,” then “any issues regarding these two elements of withholding may

have been resolved in [his] favor.” But he offers no concrete support for such

speculation.

PETITION FOR REVIEW DENIED.