Anastacia Salvador Hernandez v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANASTACIA SALVADOR HERNANDEZ, No. 20-73151
Petitioner, Agency No. A200-246-988
v.
MEMORANDUM*
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.
Anastacia Salvador Hernandez, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s decision denying her applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 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 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. Id. We deny the petition for review.
Because Salvador Hernandez does not challenge the agency’s determination
that the asylum application is untimely, we do not address it. See Rios v. Lynch,
807 F.3d 1123, 1125 n.1 (9th Cir. 2015). We do not address Salvador Hernandez’s
contentions as to merits of her asylum claim because the BIA did not deny relief on
these grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.
2011) (“In reviewing the decision of the BIA, we consider only the grounds relied
upon by that agency.” (citation and internal quotation marks omitted)). Thus,
Salvador Hernandez’s asylum claim fails.
Substantial evidence supports the agency’s determination that Salvador
Hernandez failed to establish her proposed social group is socially distinct. See
Conde Quevedo, 947 F.3d at 1243 (substantial evidence supported the agency’s
determination that petitioner’s proposed social group was not cognizable because
of the absence of society-specific evidence of social distinction). Thus, the BIA
did not err in concluding that Salvador Hernandez did not establish membership in
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a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th
Cir. 2016) (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))).
We do not consider Salvador Hernandez’s newly-raised particular social
group of “Americanized people from Mexico” because the BIA did not decide the
issue, see Santiago-Rodriguez, 657 F.3d at 829, and Salvador Hernandez does not
contend the BIA erred in finding that her proposed particular social group was not
properly before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th
Cir. 2013) (failure to contest issue in opening brief resulted in forfeiture). We do
not address Salvador Hernandez’s contentions as to whether she suffered harm
rising to the level of persecution, nexus, and whether she could relocate because
the BIA did not deny relief on these grounds. See Santiago-Rodriguez, 657 F.3d at
829.
Thus, Salvador Hernandez’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT protection
because Salvador Hernandez failed to show it is more likely than not she will be
tortured by or with the consent or acquiescence of the government if returned to
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Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED.
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