Mendoza-Hernandez v. Holder , 362 F. App'x 708 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAIME JAVIER MENDOZA- No. 07-70307
HERNANDEZ,
Agency No. A094-108-591
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Jaime Javier Mendoza-Hernandez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for withholding of removal and relief under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de
novo claims of due process violations, see Ibarra-Flores v. Gonzales, 439 F.3d
614, 620 (9th Cir. 2006), and for substantial evidence the agency’s adverse
credibility findings, see Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir. 2007).
We deny in part and grant in part the petition for review.
We deny the petition for review with respect to Mendoza-Hernandez’s
withholding of removal claims. Former gang members are not a protected social
group. See Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir. 2007) (former
gang members are not a protected social group). Similarly, refusal to join a gang
and opposition to gang activity is not a political opinion. See Santos-Lemus v.
Mukasey, 542 F.3d 738, 746-47 (9th Cir. 2008) (opposition to gang activity does
not constitute a political opinion); Barrios v. Holder, 581 F.3d 849, 855-56 (9th
Cir. 2009) (refusal to join a gang does not constitute a political opinion).
We grant the petition with respect to Mendoza-Hernandez’s motion to the
BIA to remand, which the BIA failed to address. The BIA must address and rule
upon remand motions, “giving specific, cogent reasons for a grant or denial.”
Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th Cir. 2004). We express no opinion
as to the merits of Mendoza-Hernandez’s underlying claim for CAT relief or his
due process claims as they relate to his eligibility for CAT relief.
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Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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