Rivera-Ibanez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2024
• Docket: 23-454
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MAURICIO ISAAC RIVERA-IBANEZ, No. 23-454 Agency No. Petitioner, A200-975-662 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 26, 2024**

Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.

Mauricio Isaac Rivera-Ibanez, a native and citizen of El Salvador, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

his appeal from an immigration judge’s (“IJ”) decision denying his applications for

asylum, withholding of removal, and protection under the Convention Against

* 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). Torture (“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 Rivera-Ibanez does not challenge the agency’s determination that

he conceded through counsel he was ineligible for asylum, we do not address

it. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013). We also

do not address Rivera-Ibanez’s contention that his untimely asylum application

warrants an exception because the BIA did not deny relief on that ground. See

Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing

the decision of the BIA, we consider only the grounds relied upon by that agency.”

(citation and internal quotation marks omitted)). Thus, Rivera-Ibanez’s asylum

claim fails.

Because Rivera-Ibanez does not challenge the agency’s determination that

he failed to establish past persecution, we do not address it. See Lopez-Vasquez,

706 F.3d at 1079-80. As to his fear of future persecution, the BIA did not err in

concluding that Rivera-Ibanez failed to establish membership in a cognizable

particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)

2 23-454 (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))); Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) (“The

particularity element requires characteristics that provide a clear benchmark for

determining who falls within the group,” and “[t]he group must also be discrete

and have definable boundaries—it must not be amorphous, overbroad, diffuse, or

subjective.” (internal quotation marks and citations omitted)).

Rivera-Ibanez’s contention that the IJ failed to state the relevant law

regarding particular social groups is not properly before the court because he failed

to raise it before the BIA. See 8 U.S.C. § 1252(d)(1) (exhaustion of administrative

remedies required); see also Santos-Zacaria v. Garland, 598 U.S. 411, 417-19

(2023) (section 1252(d)(1) is a non-jurisdictional claim-processing rule).

In light of this disposition, we need not reach Rivera-Ibanez’s remaining

contentions regarding his withholding of removal claim. 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). Thus, Rivera-Ibanez’s withholding of

removal claim fails.

Substantial evidence supports the agency’s denial of CAT protection

3 23-454 because petitioner 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 El Salvador. See

Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too

speculative). We reject Rivera-Ibanez’s claims the agency applied the incorrect

legal standard or otherwise erred in its analysis as unsupported by the record.

Thus, Rivera-Ibanez’s CAT claim fails.

We reject Rivera-Ibanez’s contention the BIA erred by only listing the last

name of the Appellate Immigration Judge in its decision where he points to no

authority requiring the BIA to list the judge’s full name.

Rivera-Ibanez’s motion for appointment of counsel (Docket Entry No. 23) is

denied.

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

PETITION FOR REVIEW DENIED.

4 23-454