Angela Orantes De Hernandez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA ORANTES DE HERNANDEZ, No. 16-70913
Petitioner, Agency No. A205-533-852
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, HAWKINS and McKEOWN, Circuit Judges.
Angela Orantes de Hernandez, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing Orantes
de Hernandez’s appeal from an immigration judge’s (“IJ”) decision denying
Orantes de Hernandez’s application for asylum, withholding of removal, and relief
*
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).
under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8
U.S.C. § 1252(a)(1), and we deny in part and dismiss in part the petition.
We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163,
1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s
interpretation of the governing statutes and regulations, Simeonov v. Ashcroft, 371
F.3d 532, 535 (9th Cir. 2004). 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 finding that Orantes de Hernandez did not 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))); see also Barbosa v. Barr, 919 F.3d 1169,
1175 (9th Cir. 2019) (finding that individuals returning to Mexico from the United
States who are believed to be wealthy does not constitute a particular social group).
The BIA appropriately declined to consider Orantes de Hernandez’s proposed
social group of landowners, because it was presented for the first time on appeal.1
1
Orantes de Hernandez does not challenge the BIA’s conclusion that she failed to
present the social group to the IJ, so any argument that she did is waived. See
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019). We lack jurisdiction to
consider social groups Orantes de Hernandez failed to present to the BIA. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented to the agency). Thus, Orantes de Hernandez’s
asylum and withholding of removal claims fail.
Substantial evidence supports the agency’s denial of CAT relief because
Orantes de Hernandez failed to show it is more likely than not she will be tortured
by or with the consent or acquiescence of the government if returned to Guatemala.
See Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding
that petitioner did not establish the necessary “state action” for CAT relief).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived).