Salvador Juan-Miguel v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVADOR JUAN-MIGUEL, AKA Mario No. 19-71725
Maldonado-Gonzalez; MARIA
CUPERTINO-SALVADOR; et al., Agency Nos. A205-707-451
A208-197-224
Petitioners, A208-197-225
A208-197-226
v. A208-197-227
A208-197-228
MERRICK B. GARLAND, Attorney
General,
MEMORANDUM * 0F
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**1F
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Salvador Juan-Miguel, Maria Cupertino-Salvador, and their minor children,
natives and citizens of Guatemala, petition for review of the Board of Immigration
Appeals’ (“BIA”) order denying their motion to remand and dismissing their
*
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).
appeal from an immigration judge’s decision denying their applications for asylum
and denying Juan-Miguel’s and Cupertino-Salvador’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. We
review for abuse of discretion the denial of a motion to remand. Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny the petition for review.
The agency did not err in concluding that Petitioners did not establish
membership in a cognizable particular social group with regard to Juan-Miguel’s
ownership of a business and “gang oppression” or “witness to a crime /
recruitment.”1 See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order
2F
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
1
To the extent that Petitioners’ proposed social group as defined in their brief
differs from the proposed social groups addressed in the agency, we lack
jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004).
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within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))); see also Conde Quevedo, 947 F.3d at 1243 (distinguishing
Henriquez-Rivas v. Holder, 707 F.3d 1081,1092 (9th Cir. 2013), in which a
petitioner had testified publicly in open court); Barrios v. Holder, 581 F.3d 849,
855 (9th Cir. 2009) (proposed group of young males in Guatemala who are
targeted for gang recruitment not cognizable), abrogated on other grounds by
Henriquez-Rivas, 707 F.3d at 1093.
Substantial evidence supports the agency’s conclusion that Petitioners
otherwise failed to establish that any of them 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,
Petitioners’ asylum claims and Juan-Miguel’s and Cupertino-Salvador’s
withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT protection
because Juan-Miguel and Cupertino-Salvador failed to show it is more likely than
not that 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 BIA did not abuse its discretion in denying Petitioners’ motion to
3 19-71725
remand. Their contention that the immigration judge lacked jurisdiction over their
proceedings is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158, 1160-62 (9th
Cir. 2019) (rejecting contention that lack of hearing information in notice to appear
deprived immigration court of jurisdiction).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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