Adalberto Cruz Pena 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NOT FOR PUBLICATION FILED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
ADALBERTO CRUZ PENA, No. 15-73897
Petitioner, Agency No. A087-991-529
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.
Alberto Cruz Pena, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing Pena’s appeal from
an immigration judge’s decision denying Cruz Pena’s application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
*
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).
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 deny in part and dismiss in part the petition for review.
The BIA did not err in finding that Cruz Pena’s proposed social group of
“returning repatriated Mexicans who have previously resided in the United States”
was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in
order 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
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, 926 F.3d 1053, 1059-60 (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). Thus, Cruz
Pena’s withholding of removal claim fails.
We lack jurisdiction to consider Cruz Pena’s claim that he is a member of a
particular social group defined in part by his age, because Cruz Pena did not
exhaust this claim before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-
78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the
agency).
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Cruz Pena does not challenge the agency determinations that his asylum
application was untimely or that he is ineligible for CAT relief. See 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).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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