Sergio Aguirre Barrientos v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2022
• Docket: 15-71596
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SERGIO OTONIEL AGUIRRE No. 15-71596 BARRIENTOS, Agency No. A070-939-778 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted June 2, 2022**

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

Sergio Otoniel Aguirre Barrientos, a native and citizen of Guatemala,

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

dismissing his appeal from an immigration judge’s decision denying his

* 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). application for asylum.1

We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions

of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the

extent that deference is owed to the BIA’s interpretation of the governing statutes

and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We

review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales,

453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.

Even assuming the credibility of Aguirre Barrientos’ testimony, the BIA did

not err in finding that Aguirre Barrientos 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 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))); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52

(9th Cir. 2010) (concluding “returning Mexicans from the United States” did not

constitute a particular social group).

1 Aguirre Barrientos did not challenge the agency’s denial of withholding of removal, protection under the Convention Against Torture, special rule cancellation of removal, and voluntary departure.

2 15-71596 Substantial evidence supports the agency’s conclusion that Aguirre

Barrientos otherwise failed to establish he was or would be persecuted on account

of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)

(an applicant’s “desire to be free from harassment by criminals motivated by theft

or random violence by gang members bears no nexus to a protected ground”);

Molina-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir. 2001) (personal

retribution is not persecution on account of a protected ground). Accordingly,

Aguirre Barrientos’ asylum claim fails.

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

mandate.

PETITION FOR REVIEW DENIED.

3 15-71596