Armando Huerta-Maldonado v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO HUERTA-MALDONADO, No. 19-71296
AKA Armando Huerta,
Agency No. A206-411-060
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Armando Huerta-Maldonado, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. 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. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review factual findings for substantial evidence. Id. at 1241. We deny in part and
dismiss in part the petition for review.
The record does not compel the conclusion that Huerta-Maldonado applied
for asylum within the one-year deadline or within a reasonable time of any
changed or extraordinary circumstances as to excuse the untimely filing. See 8
C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir.
2007) (record did not compel the conclusion that the petitioner showed changed
circumstances to excuse the late asylum filing). We lack jurisdiction to consider
Huerta-Maldonado’s contentions regarding lack of notice or the legislative intent
of the one-year bar, because he failed to raise them before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented below).
Thus, Huerta-Maldonado’s asylum claim fails.
The BIA did not err in concluding that Huerta-Maldonado failed to establish
membership in a cognizable social group of “young men who have been actively
recruited by gangs and who have refused to join.” See Reyes v. Lynch, 842 F.3d
2 19-71296
1125, 1131 (9th Cir. 2016) (in order 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))).
Substantial evidence also supports the determination that Huerta-Maldonado
failed to establish a nexus between past or future harm and his membership in a
particular social group of “family members of those who have actively opposed
gangs in Mexico.” See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (an
applicant “must provide some evidence of [motive], direct or circumstantial.”);
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, Huerta-Maldonado’s withholding of removal claim fails.
Substantial evidence supports the BIA’s denial of CAT relief because
Huerta-Maldonado failed to show it is more likely than not he would be tortured by
or with the consent or acquiescence of the government if returned to Mexico. See
Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (no likelihood of
torture).
The record does not support Huerta-Maldonado’s contentions that the BIA
3 19-71296
failed to consider evidence or otherwise erred in its analysis of his claims. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the BIA need not write
an exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th
Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the
record).
We do not consider the materials Huerta-Maldonado references in his
opening brief that are not part of the administrative record. See Fisher v. INS, 79
F.3d 955, 963-64 (9th Cir. 1996) (en banc) (court’s review is limited to the
administrative record).
As stated in the Court’s June 20, 2019 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4 19-71296