Geronimo Marcos-Santiago v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERONIMO MARCOS-SANTIAGO, AKA No. 16-71596
Santiago Geronimo Marcos, AKA Geronimo
Marcos Santiago, AKA Marcos Santiago Agency No. A205-299-991
Geronimo, AKA Geronimo Santiago Marcos,
Petitioner, MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2022**
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Gerónimo Marcos-Santiago petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from the 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).
decision denying his application for cancellation of removal, asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing legal questions de novo and
the agency’s factual findings for substantial evidence, see Plancarte Sauceda v.
Garland, 23 F.4th 824, 831 (9th Cir. 2022), we dismiss the petition in part and
deny it in part.
1. We have jurisdiction to review the agency’s decision to deny
cancellation of removal to the extent Marcos-Santiago argues that the IJ
“incorrectly relied on” In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002),
and instead “should have applied” In re Gonzalez Recinas, 23 I. & N. Dec. 467(B.I.A. 2002). See Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009)
(“[W]hether an IJ failed to apply a controlling standard governing a discretionary
determination is a question over which we have jurisdiction under [8 U.S.C.]
§ 1252(a)(2)(D).”). The IJ did not err by citing Andazola-Rivas, which is one of
“the starting points for any analysis of exceptional and extremely unusual
hardship,” Gonzalez Recinas, 23 I. & N. Dec. at 469, and we deny the petition for
review to the extent Marcos-Santiago argues otherwise.
We lack jurisdiction to review the agency’s decision regarding cancellation
of removal insofar as Marcos-Santiago argues that the BIA’s “application of
[Gonzalez Recinas] to the facts” of his case was “flawed.” See Mendez-Castro,
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552 F.3d at 979. Similarly, Marcos-Santiago’s argument that the BIA did not
consider a specific factor—his separation from his children—“is inherently
intertwined with the IJ’s assessment of the facts, which we lack jurisdiction to
review.” Id. We therefore dismiss the petition for review to the extent it
challenges these aspects of the BIA’s decision.
2. We deny the petition for review to the extent it challenges the denial of
asylum. The agency found that Marcos-Santiago’s asylum application was
untimely and that he lacked any valid justification for the late filing. These
findings dispose of his asylum claim, and he fails to address them in his brief here.
Therefore, he has forfeited any such challenge. See Gonzalez-Caraveo v. Sessions,
882 F.3d 885, 889 (9th Cir. 2018).
3. We deny the petition for review to the extent it challenges the denial of
withholding of removal. The BIA did not err in finding that Marcos-Santiago
failed to establish “membership in a particular social group.” 8 U.S.C.
§ 1231(b)(3)(A). Marcos-Santiago never clearly identified the particular social
group to which he belongs accounting for any persecution he will suffer in Mexico.
Based on the limited evidence Marcos-Santiago presented, the IJ reasonably
rejected as insufficiently particular a group of returnees whom criminals assaulted
based on the perception that the returnees were “relatively well-to-do.” See
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150, 1151–52 (9th Cir. 2010) (holding
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that “returning Mexicans from the United States” who were “targeted as victims of
violent crime” is “too broad to qualify as a cognizable social group”); see also
Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1227 (9th Cir. 2016) (rejecting proposed
group of “imputed wealthy Americans”).
4. We deny the petition for review to the extent it challenges the denial of
CAT relief. The BIA properly denied CAT relief on waiver grounds. See
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (per curiam) (“[T]he
[BIA] does not per se err when it concludes that arguments raised for the first time
on appeal do not have to be entertained.”). Before the BIA, Marcos-Santiago
failed to challenge the IJ’s dispositive finding “that he did not meet his burden to
show he is more likely than not to be tortured.” The BIA accurately characterized
him as “argu[ing] only that the government acquiesces in torture”—a separate
issue.
PETITION DISMISSED in part and DENIED in part.
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