Nancy Diaz-Lopez v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY PAOLA MARICELA DIAZ- No. 15-71930
LOPEZ; LUIS ANGEL GARCIA-
MACARIO; et al., Agency Nos. A206-793-525
A206-793-533
Petitioners, A205-254-638
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Nancy Paola Maricela Diaz-Lopez, Luis Angel Garcia-Macario, and their
minor daughter, natives and citizens of Guatemala, petition for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing their appeal from an
*
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).
immigration judge’s (“IJ”) decision denying their applications for asylum and
denying Diaz-Lopez’s and Garcia-Macario’s applications for withholding of
removal and protection under the Convention Against 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. “Where,
as here, the Board incorporates the IJ’s decision into its own without citing Matter
of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will review the IJ’s
decision to the extent incorporated.” Medina-Lara v. Holder, 771 F.3d 1106, 1111
(9th Cir. 2014). We deny the petition for review.
The agency did not err in finding that Garcia-Macario did not establish
membership in a cognizable particular social group related to his resistance to gang
recruitment. 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 Barrios v. Holder, 581 F.3d 849, 855 (9th Cir.
2 15-71930
2009) (proposed group of young males in Guatemala who are targeted for gang
recruitment not cognizable), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc).
Substantial evidence supports the agency’s conclusion that all Petitioners
otherwise failed to establish they 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”). Thus, all
Petitioners’ asylum claims and Diaz-Lopez’s and Garcia-Macario’s withholding of
removal claims fail.
Substantial evidence supports the agency’s denial of CAT protection
because Diaz-Lopez and Garcia-Macario failed to show it is more likely than not
they 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 issuance of the
mandate.
PETITION FOR REVIEW DENIED.
3 15-71930