Marcos Garcia Saavedra v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCOS ADRIAN GARCIA No. 19-70925
SAAVEDRA,
Agency No. A205-323-290
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
Marcos Adrian Garcia Saavedra, 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 (“IJ”) decision denying his application for
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).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014), including 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 for
substantial evidence the agency’s factual findings. Id. at 1241. We deny in part
and grant in part the petition for review, and we remand.
As to Garcia Saavedra’s proposed particular social group claim based on his
status as a returnee, the agency did not err in concluding that the social group is not
cognizable. See Reyes v. Lynch, 842 F.3d 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))); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th
Cir. 2016) (concluding that “imputed wealthy Americans” returning to Mexico
does not constitute a particular social group). We reject as unsupported by the
record Garcia Saavedra’s contention that the IJ erred in its analysis of this claim.
As to Garcia Saavedra’s claim based on his family membership, it is unclear
if the BIA considered Garcia Saavedra’s appellate argument that he was entitled to
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rely on harm to his father to establish his own claim of past persecution because he
was a child at the time of his father’s murder. See Sagaydak v. Gonzales, 405 F.3d
1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not free to ignore arguments raised by
a petitioner.”); see also Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013)
(concluding the BIA erred in failing to consider that Rusak was a child when the
events underlying her claim took place and finding that Rusak established past
persecution based on the abuses endured by her parents when she was a child). We
therefore grant the petition for review as to Garcia Saavedra’s family-based
withholding of removal claim and remand to the agency for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).
Substantial evidence supports the agency’s denial of CAT relief because
Garcia Saavedra failed to show it is more likely than not that he will be tortured by
or with the consent or acquiescence of the government if returned to Mexico. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). We reject as unsupported by
the record Garcia Saavedra’s contention that the agency erred in its analysis of his
CAT claim.
The agency properly determined it lacked jurisdiction to consider Garcia
Saavedra’s waiver of inadmissibility. See Man v. Barr, 940 F.3d 1354, 1357 (9th
Cir. 2019) (“Immigration Judges lack the authority to consider a request by a
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petitioner for U nonimmigrant status for a waiver under section 212(d)(3)(A)(ii) of
the [Immigration and Nationality] Act.” (quoting Matter of Khan, 26 I & N Dec.
797, 803 (BIA 2016) (internal quotation marks omitted)).
Garcia Saavedra’s removal is stayed pending a decision by the BIA.
The parties shall bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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