Masedonia Castaneda Tellez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASEDONIA CASTANEDA TELLEZ; et No. 18-71184
al.,
Agency Nos. A202-098-874
Petitioners, A202-098-875
A202-098-876
v. A202-098-877
WILLIAM P. BARR, Attorney General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 8, 2020**
Portland, Oregon
Before: M. MURPHY,*** BENNETT, and MILLER, Circuit Judges.
Masedonia Castaneda Tellez, and her four minor children, natives and
citizens of Mexico, seek review of a Board of Immigration Appeals order
*
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).
***
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
dismissing their appeal from an immigration judge’s decision denying Castaneda
Tellez’s application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Castaneda Tellez’s children sought relief as
derivative beneficiaries. See 8 U.S.C. § 1158(b)(3)(A). We have jurisdiction under
8 U.S.C. § 1252(a)(1), and we deny the petition.
1. The Board determined that Castaneda Tellez’s proposed particular
social group of “single mothers and family members of teens who are harassed and
threatened in school by cartels” is not cognizable because it is “improperly
circular” and lacks particularity and social distinction. Castaneda Tellez argues that
the Board erred in deeming the group’s definition to be improperly circular, but
she does not address the Board’s finding that the group lacks particularity and
social distinction. The latter finding is sufficient to support the Board’s conclusion,
and it is supported by substantial evidence because no record evidence
demonstrates the boundaries of the group or establishes that it is perceived as a
group by Mexican society. See Garay Reyes v. Lynch, 842 F.3d 1125, 1135, 1137–
38 (9th Cir. 2016); 8 U.S.C. § 1252(b)(4)(B).
2. Castaneda Tellez argues the Board should have considered whether
she faced persecution on the basis of her membership in a particular social group
consisting of her family. That group was not presented to the immigration judge,
and the Board concluded that Castaneda Tellez “does not claim past and feared
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future persecution on the basis of membership in her family alone; instead, she
claims past and feared future persecution on account of being a family member of
someone (her eldest son) threatened and harassed by gangs in Mexico.” The
Board’s conclusion was consistent with Castaneda Tellez’s prehearing statement,
her testimony, and counsel’s representations at the hearing.
3. The Board held that Castaneda Tellez waived her claim of persecution
on account of political opinion because she did not raise it before the immigration
judge. Nonetheless, the Board reached the merits of that claim and correctly
rejected it. Castaneda Tellez and her son’s opposition to the cartel, by itself, does
not constitute a political opinion. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747
(9th Cir. 2008) (“[A] general aversion to gangs does not constitute a political
opinion for asylum purposes.”), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013).
4. The Board also held that Castaneda Tellez waived her CAT claim
because she did not offer any argument contesting the immigration judge’s
decision. Castaneda Tellez does not address or challenge the waiver determination,
so she has waived that ground for relief here. See Cui v. Holder, 712 F.3d 1332,
1338 n.3 (9th Cir. 2013).
PETITION DENIED.
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