Diego Hernandez-Mendoza v. Loretta E. Lynch , 616 F. App'x 311 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DIEGO HERNANDEZ-MENDOZA, No. 12-73054
Petitioner, Agency No. A075-093-421
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 4, 2015**
Seattle, Washington
Before: NOONAN, HAWKINS, and GOULD, Circuit Judges.
Petitioner Diego Hernandez-Mendoza petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision upholding the immigration judge’s decision
finding him removable as charged and denying his application for asylum,
*
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).
withholding of removal, and protection under the Convention Against Torture
(“CAT”).
The government met its burden to prove Petitioner was removable after his
conviction for two crimes of moral turpitude “not arising out of a single scheme of
criminal misconduct.” 8 U.S.C. § 1227(a)(2)(A)(ii). Although the thefts were eight
days apart (one at Walmart and the other at Fred Meyer), they were not crimes that
were planned at the same time and executed in accordance with such a plan, especially
in light of Petitioner’s own testimony that they were each spontaneous events in which
he became impatient waiting in line and left the stores without paying for the
merchandise. Cf. Leon Hernandez v. INS, 926 F.2d 902, 905 (9th Cir. 1991). We,
therefore, lack jurisdiction over this portion of his petition and dismiss it in part. 8
U.S.C. § 1252(a)(2)(C).
Any due process violation that might arise from the immigration judge’s failure
to advise Petitioner of the right to appeal is harmless because Petitioner did file a
timely appeal, which the BIA adjudicated, and thus suffered no prejudice. See
Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994).
The evidence does not compel the conclusion that Petitioner would be
persecuted or tortured upon return to Mexico because he is in a particular social group
of those returning after many years as permanent residents in the United States. This
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group lacks the sort of particularity or social visibility required for asylum. See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52 (9th Cir. 2010) (holding that the
petitioner’s proposed social group, “returning Mexicans from the United States,” is
too broad to be a cognizable group); see also Henriquez-Rivas v. Holder, 707 F.3d
1081, 1087–91 (9th Cir. 2013) (en banc). His speculation that he would become a
target for gangs falls far short of the “more likely than not” standard required for CAT
protection. 8 C.F.R. § 1208.16(c)(2).
PETITION DISMISSED IN PART, DENIED IN PART.
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