Benedicto Hernandez-Torrez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENEDICTO MIGUEL HERNANDEZ- No. 15-70440
TORREZ,
Agency No. A072-990-055
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 24, 2020**
Before: SCHROEDER, TROTT, and SILVERMAN, Circuit Judges.
Benedicto Miguel Hernandez-Torrez, 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
*
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).
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).1
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
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 review for substantial evidence the agency’s factual findings. Zehatye v.
Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss the petition for
review in part and deny it in part.
To the extent that Hernandez-Torrez’s proposed particular social group
differs in his petition from the definition of that group he presented to the BIA, we
lack jurisdiction to review his claim. See Barron v. Ashcroft, 358 F.3d 674, 677-78
(9th Cir. 2004). As to the remainder of his claim, the BIA did not err in finding
that he did not establish membership in a cognizable social group. See Reyes v.
Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order 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
1
Hernandez-Torrez does not contest the agency’s conclusion that his asylum
application was time barred.
2 15-70440
question’”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).
Substantial evidence supports the BIA’s conclusion that Hernandez-Torrez
otherwise failed to establish that he would be persecuted on account of a protected
ground. He did not present any evidence that his cousin’s assaults were motivated
by the petitioner’s membership in any group or on account of any protected status.
See 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, Hernandez-Torrez’s
withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT protection
because Hernandez-Torrez 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).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 15-70440