Alonzo Nicolas v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
MAR 20 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Juan Francisco Alonzo Nicolas; Francisco No. 21-338
Alexis Alonzo Rufino,
Agency Nos. A200-295-781
Petitioners, A209-164-221
v.
MEMORANDUM *
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2023 **
Pasadena, California
Before: LEE, BRESS, MENDOZA, Circuit Judges.
Petitioners Juan Francisco Alonzo Nicolas and Francisco Alexis Alonzo
Rufino, both natives and citizens of Guatemala, petition for review of a Board
of Immigration Appeals (“BIA”) order upholding an Immigration Judge’s (“IJ”)
*
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).
denial of Petitioners’ applications for asylum and other forms of relief. 1 We
review de novo the BIA’s determinations on questions of law and mixed
questions of law and fact. Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir.
2013). The BIA’s factual findings are reviewed for substantial evidence.
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc).
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petitions.
I.
Petitioners argue the BIA lacked jurisdiction because their initial Notices
to Appear did not include a time and date for their removal hearings. Because
Petitioners did not raise this argument before the agency, we lack jurisdiction to
consider it. Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022).
II.
Petitioners’ asylum claim is based on membership in the proposed social
group of those who “fear of retribution for refusal to join a gang.” We have
previously rejected proposed particular social groups based on resistance to
gang recruitment for lack of particularity. See Barrios v. Holder, 581 F.3d 849,
854–55 (9th Cir. 2009) (rejecting “young men in Guatemala who resist gang
recruitment” as a cognizable particular social group), abrogated in part on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en
1
Petitioners’ other forms of relief include withholding of removal, protection
under the Convention Against Torture, and voluntary departure. Petitioners do
not challenge, and therefore waive, these issues. See Rios v. Lynch, 807 F.3d
1123, 1125 n.1 (9th Cir. 2015) (explaining that issues not specifically raised and
argued in a party’s brief are waived).
2 21-338
banc). Petitioners failed to show Guatemalan society views “fear of retribution
for refusing to join a gang” as a particular social group. We conclude the BIA
did not err in affirming the IJ’s denial of Petitioners’ asylum claim. 2
The temporary stay of removal remains in place until the mandate issues.
PETITIONS DENIED.
2
Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014) does not alter our
conclusion. In Pirir-Boc, we held that the BIA erred in failing to consider
evidence of how Guatemalan society viewed a proposed particular social group.
Id. at 1084. Here, the IJ considered Petitioners’ only society-specific
evidence—the 2017 Guatemala Human Rights Report—and determined it was
insufficient to demonstrate that “fear of retribution for refusal to join a gang”
was a particular social group. The record lacks any country condition report,
news report, law, proposed legislation, or expert testimony demonstrating social
distinction.
3 21-338