Juan Arreaga Puac v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS ARREAGA PUAC, No. 16-71238
Petitioner, Agency No. A206-357-326
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 7, 2022**
San Francisco, California
Before: S.R. THOMAS and McKEOWN, Circuit Judges, and ORRICK,*** District
Judge.
Juan Carlos Arreaga Puac, a native and citizen of Guatemala, petitions for
review of the decision of the Board of Immigration Appeals (“BIA”) affirming an
*
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 William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
Immigration Judge’s (“IJ”) denial of withholding of removal.1 “When the BIA
conducts its own review of the evidence and law rather than adopting the IJ’s
decision, our review is limited to the BIA’s decision, except to the extent that the
IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010) (internal quotation marks and citations omitted). We review
questions of law and mixed questions of law and fact de novo and factual findings
for substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir.
2020). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
Substantial evidence supports the BIA’s determination that Arreaga failed to
show a clear likelihood of economic persecution on account of being indigenous.
While purely economic harm can rise to the level of persecution in certain
circumstances, see Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th Cir. 2004), the
only evidence of future economic harm that Arreaga introduced below was country
conditions evidence documenting racism against indigenous Guatemalans in
employment generally. He pointed to no past persecution against him and no
evidence supporting his position that he would face economic harm that amounted
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The BIA and IJ also denied asylum and protection under the Convention
Against Torture (“CAT”). Arreaga’s brief does not challenge the denial of asylum.
Though his “question presented” references CAT, the brief contains no substantive
challenge to or argument about that determination. These issues are, therefore, not
before us. See Iraheta-Martinez v. Garland, 12 F.4th 942, 959 (9th Cir. 2021)
(holding that appellant forfeited argument by failing to develop it in his opening
brief).
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to persecution in the future.
We also reject Arreaga’s argument that the BIA erred in finding that he
failed to show a likelihood of persecution on account of membership in a particular
social group. As an initial matter, the government is incorrect that this issue is
unexhausted. Arreaga raised it in his brief to the BIA and the BIA passed on it.
See Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018); Figueroa v. Mukasey,
543 F.3d 487, 492 (9th Cir. 2008). While Arreaga did not meaningfully develop
his argument, he need not have done so to exhaust it. Figueroa, 543 F.3d at 492.
Both below and here, Arreaga failed to put forward any meaningful evidence
or argument showing that his proposed particular social group—Guatemalans
subject to a “virtual kleptocracy” from gangs—is cognizable. See Reyes v. Lynch,
842 F.3d 1125, 1132 n.3 (9th Cir. 2016) (explaining that the applicant bears the
burden to prove the existence of a cognizable particular social group). Generally,
“[a]n alien’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.” Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). Arreaga has not presented here,
and did not present below, evidence or argument showing that this proposed social
group shares a common immutable characteristic, is defined with particularity, or
is perceived as socially distinct in Guatemalan society. See Reyes, 842 F.3d at
1131. And he has not shown that “individuals in the group . . . share a narrowing
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characteristic other than their risk of being persecuted.” Diaz-Reynoso v. Barr, 968
F.3d 1070, 1081 (9th Cir. 2020) (internal quotation marks and citations omitted).
PETITION DENIED.
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