Antonio Gomez Ojeda v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO GOMEZ OJEDA, No. 20-70165
Petitioner, Agency No. A205-466-956
v.
MEMORANDUM * 0F
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 17, 2022**1F
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Antonio Gomez Ojeda, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
terminate proceedings and dismissing his appeal from an immigration judge’s
*
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).
(“IJ”) decision denying his application for withholding of removal and protection
under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal
question of whether a particular social group is cognizable, except to the extent
that deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review for substantial evidence the agency’s factual findings. Id. at 1241.
Gomez Ojeda’s contention that the immigration judge lacked jurisdiction
over his proceedings is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895
(9th Cir. 2020) (“[T]he lack of time, date, and place in the [Notice to Appear] . . .
did not deprive the immigration court of jurisdiction . . . .”).
The agency did not err in concluding that Gomez Ojeda did not establish
membership in a cognizable particular social group consisting of persons perceived
to have wealth. 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) (proposed group of individuals returning to Mexico from the United States
2 20-70165
who are believed to be wealthy was not cognizable because it was “too broad to
qualify”). Additionally, substantial evidence supports the agency’s conclusion that
Gomez Ojeda otherwise failed to establish that he would be persecuted on account
of a protected ground. Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an
applicant’s “desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground”). Thus,
Gomez Ojeda’s withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT protection
because Gomez Ojeda failed to show it is more likely than not he will be tortured
by or with the consent or acquiescence of the government if returned to Mexico.
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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