Carlos Martinez-Mendoza v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS MARTINEZ-MENDOZA, No. 16-71164
Petitioner, Agency No. A200-151-621
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2019**
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.
Carlos Martinez-Mendoza, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,
*
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).
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, Garcia-Milian v. Holder,
755 F.3d 1026, 1031 (9th Cir. 2014), and review de novo due process claims,
Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). We deny the petition for
review.
The BIA did not err in finding that Martinez-Mendoza’s social group of
“young men returning from extended stay in United States”1 was not cognizable.
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)));
see also Barbosa v. Barr, 926 F.3d 1053, 1059-60 (9th Cir. 2019) (finding that
individuals returning to Mexico from the United States who are believed to be
1
On appeal to this court, Martinez-Mendoza alternatively characterizes this
proposed social group as “those returning after many years as a resident in the
United States.”
2
wealthy does not constitute a particular social group).
Martinez-Mendoza also fears harm in Mexico based on his family social
group. Substantial evidence supports the agency’s determination that Martinez-
Mendoza failed to establish that he would be persecuted on account of his
membership in such group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir.
2011) (even if membership in a particular social group is established, an applicant
must still show that “persecution was or will be on account of his membership in
such group” (emphasis in original)); 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”). Our conclusion is not affected by the differing nexus
standards applicable to asylum and withholding of removal claims. Cf. Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder
having drawn no distinction between the standards where there was no nexus at all
to a protected ground).
Thus, Martinez-Mendoza’s asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Martinez-Mendoza failed to show it is more likely than not that he would be
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tortured by or with the consent or acquiescence of the government of Mexico. See
Garcia-Milian, 755 F.3d at 1033-35 (concluding that petitioner did not establish
the necessary “state action” for CAT relief).
Martinez-Mendoza’s contention that his right to due process was violated
based on alleged insufficiencies in the BIA’s decision fails for lack of prejudice.
See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring substantial
prejudice to prevail on a due process claim).
PETITION FOR REVIEW DENIED.
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