Luis Flores-Buerostro v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS EDUARDO FLORES-BUEROSTRO, No. 18-71269
AKA Luis Eduardo Flores, AKA Luis
Eduardo Flores-Buenrostro, Agency No. A200-242-974
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Luis Eduardo Flores-Buerostro, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying his applications for
*
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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, including determinations
regarding social distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th
Cir. 2020). We review de novo questions of law, including 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. Id. We deny in part and
dismiss in part the petition for review.
The BIA did not err in finding that Flores-Buerostro did not establish
membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (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 Conde Quevedo, 947 F.3d at 1243
(proposed social group lacked social distinction because the record failed to
establish its members are perceived or recognized as a group by the society in
question). To the extent Flores-Buerostro raises a new proposed particular social
group in his opening brief, we lack jurisdiction to consider it because he failed to
raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
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Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings
below).
Substantial evidence supports the agency’s determination that Flores-
Buerostro failed to establish that he was or will be persecuted on account of an
actual or imputed political opinion. See Sagaydak v. Gonzales, 405 F.3d 1035,
1042 (9th Cir. 2005) (to establish a nexus to political opinion, petitioner must show
“(1) that [he] had either an affirmative or imputed political opinion, and (2) that [he
was] targeted on account of that opinion”); see also Santos-Lemus v. Mukasey, 542
F.3d 738, 746-47 (9th Cir. 2008) (resistance to a gang’s recruitment efforts alone
does not constitute political opinion) abrogated on other grounds by Henriquez-
Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); 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, Flores-Buerostro’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Flores-Buerostro 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. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
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To the extent Flores-Buerostro claims the BIA violated his due process
rights, his contention fails because he has not shown error. See Padilla-Martinez v.
Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a
petitioner must demonstrate both a violation of rights and prejudice.”).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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