Oscar Alonso-Castenada v. Matthew Whitaker ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ALBERTO ALONSO- No. 15-73580
CASTENADA, AKA Oscar Castaneda,
AKA Oscar Alonso Castenada, AKA Agency No. A200-626-073
Oscar Alonzo Casteneda,
Petitioner, MEMORANDUM*
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 9, 2018**
Portland, Oregon
*
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).
Before: FISHER and CALLAHAN, Circuit Judges, and BENCIVENGO,***
District Judge.
Petitioner, Oscar Alberto Alonso-Castenada (“Alonso-Castenada”), seeks
review of an order of the Board of Immigration Appeals (“Board”) denying his
application for asylum and withholding of removal. Alonso-Castenada argues that
(1) extraordinary circumstances justify his untimely asylum application; (2) the
Board erred in determining that he failed to establish membership in a particular
social group; and (3)the Board erred in determining that he does not have a well-
founded fear of persecution. We have jurisdiction pursuant to 8 U.S.C. § 1252
and we deny the petition.
1. To be eligible for asylum, an alien must prove “by clear and convincing
evidence that the application has been filed within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An untimely
application may be considered if the alien demonstrates “extraordinary
circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D).
Alonso-Castenada argues that his “lack of continued access to legal counsel”
constituted an extraordinary circumstance justifying the delay in his filing of an
application for asylum. However, the alleged interference with Alonso-
***
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
2
Castenada’s representation occurred after he filed his application for relief, so it
was not “related to the delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D).
Further, Alonso-Castenada’s alleged fear of removal does not excuse his delay.
The Board properly pretermitted Alonso-Castenada’s asylum application.
2. To establish eligibility for withholding of removal, an applicant must
demonstrate a clear probability of persecution in the country designated for
removal based upon race, religion, nationality, political opinion, or membership in
a particular social group. See INS v. Stevic, 467 U.S. 407, 429–30 (1984). To
establish membership in a particular social group, Alonso-Castenada must
demonstrate: (1) “the existence of a cognizable particular social group,” (2) “his
membership in that particular social group,” and (3) “a risk of persecution on
account of his membership in the specified particular social group.” Ayala v.
Holder, 640 F.3d 1095, 1097–98 (9th Cir. 2011). To satisfy the particularity
requirement, a group must be “recognized, in the society in question, as a discrete
class of persons,” Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013),
and must not be “amorphous, overbroad, diffuse, or subjective,” Matter of W-G-R-,
26 I. & N. Dec. 208, 214 (BIA 2014); see Reyes v. Lynch, 842 F.3d 1125, 1139
(9th Cir. 2016). For a group to have social distinction there must exist sufficient
evidence that it is “perceived as a group by society,” regardless of whether the
3
society can identify the members of the group by sight. Henriquez-Rivas, 707 F.3d
at 1085 (citing Matter of S-E-G-, 24 I. & N. Dec. 579, 585 (BIA 2008)).
Alonso-Castenada has failed to shoulder his burden of showing membership
in a cognizable social group. First, as he did not clearly articulate a particular
social group before the agency, he may have waived the issue. See Fahoud v.
I.N.S., 122 F.3d 794, 796 (9th Cir. 1997) (noting that failure to raise an issue below
constitutes failure to exhaust administrative remedies and may deprive the court of
jurisdiction to hear the matter). Second, to the extent that Alonso-Castenada
claims that he is a member of a particular group of individuals who testified against
smugglers, or of a group of individuals who are likely to be coerced into joining a
drug cartel, he failed to develop a record to support such claims. He has not
presented any evidence of recognition of the proposed groups or of how they might
be defined. See Reyes, 842 F.3d at 1139; see also Matter of W–G–R–, 26 I. & N.
Dec. at 221 (“The boundaries of a group are not sufficiently definable unless the
members of society generally agree on who is included in the group, and evidence
that the social group proposed by the respondent is recognized within the society is
lacking in this case.”).
3. Alonso-Castenada challenges the Board’s conclusion that he did not
demonstrate clear probability of future persecution. He raises this argument solely
4
with respect to his asylum claim. Because we hold that his asylum claim is
untimely, we do not reach this issue.
The petition for review is DENIED.
5