Vasquez Vasquez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID VASQUEZ VASQUEZ, No. 21-892
Petitioner, Agency No. A205-713-068
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 17, 2023**
Pasadena, California
Before: LEE, BRESS, MENDOZA, Circuit Judges.
David Vasquez Vasquez (Vasquez), a native and citizen of Mexico,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
denying his applications for cancellation of removal, asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. We dismiss the petition in part and deny it in
*
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).
part.
1. We lack jurisdiction over Vasquez’s challenge to the BIA’s denial
of cancellation of removal because Vasquez advances no colorable legal or
constitutional claims. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Mendez-
Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (“[A] petitioner may not
create the jurisdiction that Congress chose to remove simply by cloaking an abuse
of discretion argument in constitutional garb.” (quotation omitted)). The BIA
denied Vasquez’s application as a matter of overall discretion, and Vasquez raises
no specific challenge to this finding, let alone a colorable legal or constitutional
claim.
2. We review denials of asylum and withholding of removal for
substantial evidence. Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021).
Under that standard, we “must uphold the agency determination unless the
evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d
1025, 1028 (9th Cir. 2019). Substantial evidence supports the BIA’s denial of
asylum and withholding of removal.
To be eligible for asylum, Vasquez must demonstrate a “likelihood of
‘persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.’”
Sharma, 9 F.4th at 1059 (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish
eligibility for withholding of removal, he must show a “clear probability” of such
harm. Id. (quotation omitted).
2
The BIA denied Vasquez’s asylum application as untimely, and Vasquez
has not challenged that determination in his petition for review. See 8 U.S.C.
§ 1158(a)(2)(B) (alien must “demonstrate[] by clear and convincing evidence that
the application has been filed within 1 year after the date of the alien’s arrival in
the United States.”); Al Ramahi v. Holder, 725 F.3d 1133, 1134–35 (9th Cir.
2013) (discussing one-year time limit on asylum applications). This is dispositive
of Vasquez’s asylum application. See Nguyen v. Barr, 983 F.3d 1099, 1102 (9th
Cir. 2020) (issues not raised in the opening brief are waived).
The BIA also denied asylum and withholding of removal on the ground
that Vasquez’s proposed social group was not cognizable. Vasquez proposed the
following social group:
Americanized Mexican fathers returning to Mexico with at least one
U.S. citizen child at direct risk for kidnapping or violence by illegal
drug cartels or other criminals due to 1) opposition to drug cartel and
criminal activity, and 2) affirmative steps taken to combat illegal
drug cartel and criminal activity.
The BIA determined that this social group was circularly defined by the
harm Vasquez fears (i.e., violence or kidnapping in Mexico). Such circularity is
impermissible under longstanding BIA precedent. See Matter of M-E-V-G-, 26
I. & N. Dec. 227, 236 n.11 (B.I.A. 2014); see also Diaz-Reynoso v. Barr, 968
F.3d 1070, 1080 (9th Cir. 2020) (discussing the “well-established principle that a
particular social group must exist independently of the harm asserted”). Vasquez
does not challenge this finding in his petition, which is independently dispositive
of his applications for asylum and withholding of removal.
3
Finally, the BIA also concluded that Vasquez had not shown that his
proposed social group is viewed as socially distinct within Mexican society. A
particular social group is cognizable only if it is “sufficiently distinct that the
group would be recognized, in the society in question, as a discrete class of
persons.” Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013) (en
banc) (quotation omitted). Because Vasquez presented no evidence to support
such a finding, the record does not “compel[] a . . . conclusion” contrary to that
of the BIA. Duran-Rodriguez, 918 F.3d at 1028.
3. Substantial evidence supports the BIA’s denial of CAT relief.
Sharma, 9 F.4th at 1066 (standard of review). “To qualify for CAT relief, a
petitioner must show that [he] more likely than not will be tortured if [he] is
removed to [his] native country.” Vitug v. Holder, 723 F.3d 1056, 1066 (9th Cir.
2013). In this case, Vasquez presented no evidence that he was tortured in
Mexico or that he would be tortured if he returned there. Because Vasquez
referred only to generalized violence in Mexico, substantial evidence supports the
BIA’s denial of CAT relief. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152
(9th Cir. 2010) (per curiam) (explaining that “Petitioners’ generalized evidence
of violence and crime in Mexico is not particular to Petitioners and is insufficient”
to meet the standard for CAT relief).
DISMISSED in part and DENIED in part. 1
1
Petitioner’s motion for stay of removal is denied as moot.
4