Salinas-Montenegro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELOY SALINAS-MONTENEGRO, No. 21-3
Agency No.
Petitioner, A029-456-196
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 19, 2023**
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and MORRIS, District
Judge.***
Petitioner Eloy Salinas-Montenegro, a native of Mexico, petitions for
review of a Board of Immigration Appeals (“BIA”) decision dismissing his
appeal of an Immigration Judge (“IJ”) order that denied his applications for
*
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 Brian M. Morris, United States District Judge for
the District of Montana, sitting by designation.
withholding of removal and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition.1
We uphold the BIA’s factual determinations so long as they are supported
by substantial evidence. See Flores Molina v. Garland, 37 F.4th 626, 632 (9th
Cir. 2022). We review questions of law de novo. See id. Where “the BIA issues
its own decision but relies in part on the immigration judge’s reasoning, we
review both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir.
2012).
1. The BIA did not err in holding that Salinas-Montenegro’s proposed
particular social group of “repatriated Mexican citizens perceived as American”
1
The government contends that we lack jurisdiction because Salinas-
Montenegro’s petition is untimely, citing Bhaktibhai-Patel v. Garland, 32 F.4th
180 (2d Cir. 2022). In Bhaktibhai-Patel, the Second Circuit relied on the
Supreme Court’s decisions in Nasrallah v. Barr, 140 S. Ct. 1683 (2020), and
Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021), to hold that it lacked
jurisdiction over a noncitizen’s petition for review of the BIA’s denial of
withholding-only relief because 1) an order denying withholding of removal is
not itself a final order of removal and 2) the noncitizen had waited too long to
petition for review of his reinstated removal order. 32 F.4th at 189-93. But in
Ortiz-Alfaro v. Holder, we held that a “reinstated removal order does not
become final until the reasonable fear of persecution and withholding of
removal proceedings are complete.” 694 F.3d 955, 958 (9th Cir. 2012). Ortiz-
Alfaro is not clearly irreconcilable with Nasrallah and Johnson, see Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), so we remain bound by
it. Because Salinas-Montenegro timely filed his petition for review within thirty
days of the completion of his withholding-only proceedings, we have
jurisdiction.
2 21-3
was not cognizable. “Whether a group constitutes a ‘particular social group’
under the INA is a question of law we review de novo.” Perdomo v. Holder,
611 F.3d 662, 665 (9th Cir. 2010). Our precedent forecloses the recognition of
Salinas-Montenegro’s proposed group. See Ramirez-Muñoz v. Lynch, 816 F.3d
1226, 1228-29 (9th Cir. 2016) (rejecting particular social group of “imputed
wealthy Americans”); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th
Cir. 2010) (rejecting particular social group of “returning Mexicans from the
United States”). Accordingly, Salinas-Montenegro's proposed particular social
group cannot establish eligibility for withholding of removal.
2. Substantial evidence supports the BIA’s determination that Salinas-
Montenegro is also ineligible for CAT relief. While Salinas-Montenegro
credibly testified about his assault by Mexican law enforcement in December
1999, he presented no evidence that the Mexican authorities have harmed or
threatened him in the intervening twenty-three years since the assault occurred,
let alone evidence that Mexican authorities remain aware of him. Even
assuming his past assault constitutes torture, Salinas-Montenegro has not
established a particularized risk of future torture. Accordingly, the probability of
future torture is too speculative on the record presented to compel the
conclusion that Salinas-Montenegro is entitled to CAT relief. Lalayan v.
Garland, 4 F.4th 822, 840 (9th Cir. 2021).
PETITION DENIED.
3 21-3