Lopez-Franco v. Garland ( 2023 )

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NOT FOR PUBLICATION
FILED
APR 19 2023
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FABRICIO LOPEZ-FRANCO, No. 21-929
Petitioner, Agency No. A208-412-425
v.
MEMORANDUM
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023
San Francisco, California
Before: VANDYKE and SANCHEZ, Circuit Judges, and VRATIL,
District Judge.
Petitioner Fabricio Lopez-Franco, a native and citizen of Mexico, seeks
review of a decision of the Board of Immigration (“BIA”) affirming the decision

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 Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
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of the Immigration Judge (“IJ”), who denied his applications for asylum,
withholding of removal, protection under the Convention Against Torture
(“CAT”), cancellation of removal, and special rule cancellation.1 We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
We review agency denials of asylum and withholding of removal for
substantial evidence, i.e. whether agency findings are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Yali
Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quotation marks and
citations omitted). The agency’s “factual findings are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
Villavicencio v. Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018) (quotation marks
and citation omitted). Whether a group constitutes a particular social group is a
question of law we review de novo. Santos-Ponce v. Wilkinson, 987 F.3d 886,
890 (9th Cir. 2021).
1. The BIA denied petitioner’s asylum and withholding of removal
claims based on the particular social group of “men resisting gang recruitment”
on the ground that the group was not cognizable. We have previously rejected
proposed particular social groups based on resistance to gang recruitment for
lack of social distinction and/or particularity. See Santos-Ponce, 987 F.3d at
1
Petitioner does not challenge the BIA’s denial of CAT protection.
2
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890; Ramos-Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009). We
conclude that petitioner failed to show that his proposed social group of “men
resisting gang recruitment” is socially distinct and defined with particularity.
2. Substantial evidence supports the BIA’s determination that
petitioner’s relationship to his brother did not give rise to a well-founded fear of
harm. Relying on Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006), petitioner
contends that the IJ and BIA impermissibly assumed facts not in the record—
namely, that his other siblings who remain in Mexico have not been harmed—
reliance on which petitioner had received no notice. “To prevail on a due
process challenge to deportation proceedings, [the petitioner] must show error
and substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). At
the merits hearing and in briefing before the agency, petitioner was provided an
opportunity to explain what harm he or his siblings have experienced as a result
of their connection to his brother. He could not do so. The record does not
support petitioner’s contention that the agency erred.
3. Petitioner argues that in denying his applications for cancellation of
removal and special rule cancellation, the IJ and the BIA constitutionally erred
by failing to consider relevant evidence. We review questions of law de novo.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). “To prevail on a due
process challenge to deportation proceedings, [petitioner] must show error and
3
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substantial prejudice.” Lata, 204 F.3d at 1246 (citations omitted).
In denying petitioner’s applications, the BIA understood petitioner’s
hardship arguments, reviewed the record, and concluded that he had not met his
burden of establishing emotional hardship if removed to Mexico. Larita-
Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000) (petitioner must
overcome presumption that BIA reviewed record). The BIA did not err in this
regard. See Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (“[T]he
[BIA] does not have to write an exegesis on every contention. What is required
is merely that it consider the issues raised, and announce its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought
and not merely reacted.” (quotation marks and citation omitted)).
4. Finally, petitioner argues that the IJ abandoned his role as a neutral
factfinder and that the BIA failed to address this issue on appeal. Petitioner has
not established, however, that the IJ’s alleged bias “affect[ed] the outcome of the
proceedings.” United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.
1986). The BIA reasonably concluded that because “the emotional and minimal
financial disruption caused by [petitioner]’s removal is not, on this record,
beyond the typical,” petitioner had not demonstrated prejudice. See
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir. 2007) (“[I]f the
factual record adequately supports the denial of an [immigrant]’s application for
4
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relief, we cannot find that the alleged bias held by the IJ was the basis for the
denial of the application.” (citation omitted)).
PETITION DENIED.
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