Francisco Alvarado-Favela v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 28 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO ABRAHAM ALVARADO- No. 16-72374
FAVELA,
Agency No. A095-662-816
Petitioner,
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, McKEOWN and HAWKINS, Circuit Judges.
Francisco Abraham Alvarado-Favela, a native and citizen of Mexico,
petitions for review of the Board of Immigrations Appeals’ (BIA) order dismissing
his appeal from an immigration judge’s (IJ) decision denying his applications for
*
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).
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Whether a group constitutes a “particular social group” is a question of law
that we review de novo. Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010).
We review for substantial evidence the agency’s factual findings. Zehatye v.
Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).
The BIA did not err in its conclusion that Alvarado-Favela failed to establish
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (in order to demonstrate membership in a particular 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))); Barbosa v. Barr, 926 F.3d 1053, 1059 (9th
Cir. 2019) (finding that individuals returning to Mexico from the United States
2
who are believed to be wealthy does not constitute a particular social group).
Thus, Alvarado-Favela’s asylum and withholding of removal claims fail.1
Substantial evidence supports the BIA’s determination that Alvarado-Favela
did not establish that he is more likely than not to be tortured by or with the
consent or acquiescence of the government if returned to Mexico. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Garcia-Milian v. Holder, 755 F.3d
1026, 1033 (9th Cir. 2014) (concluding that petitioner did not establish the
necessary “state action” for CAT relief). Thus, Alvarado-Favela’s CAT claim fails.
PETITION FOR REVIEW DENIED.
1
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).
3