Luis Ramirez Barragan v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ANGEL RAMIREZ BARRAGAN, No. 18-72891
Petitioner, Agency No. A208-967-444
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 18, 2022
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,** District Judge.
Luis Angel Ramirez Barragan (“Petitioner”) petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of his application for protection
under the Convention Against Torture (“CAT”) and denial of his motion for
remand. Because the parties are familiar with the facts and procedural history of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
the case, we do not recite them here.
We review factual findings regarding a petitioner’s claim for protection
under the CAT for substantial evidence. Lopez v. Sessions, 901 F.3d 1071, 1074
(9th Cir. 2018). “We review the BIA’s denial of a motion to reopen and remand
for abuse of discretion” and “[t]he BIA abuses its discretion when it acts
arbitrarily, irrationally, or contrary to law.” Movsisian v. Ashcroft, 395 F.3d 1095,
1098 (9th Cir. 2005) (internal quotation omitted). We review de novo whether a
group constitutes a particular social group. Pirir-Boc v. Holder, 750 F.3d 1077,
1081 (9th Cir. 2014).
1. Substantial evidence supports the BIA’s determination that Petitioner
did not qualify for protection under the CAT. To qualify for protection under the
CAT, a petitioner must show that “it is more likely than not that he or she would be
tortured if removed.” 8 C.F.R. § 208.16(c)(2); see also Pirir-Boc, 750 F.3d at
1085. Torture requires the intentional infliction of severe pain or suffering
“inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” Kamalthas v. I.N.S., 251
F.3d 1279, 1282 (9th Cir. 2001) (quoting 8 C.F.R. § 208.18(a)(1)).
Here, as the Immigration Judge (“IJ”) found and the BIA upheld, Petitioner
provides no evidence that Mexican government officials instigated, consented, or
acquiesced in his uncle’s kidnapping. Nor does he give any evidence that he
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would be targeted for kidnapping because of his family connection to his uncle.
Petitioner’s fear of torture on account of his tattoos is based on generalized
evidence of violence and gang recruitment in Mexico. Petitioner’s “generalized
evidence of violence and crime in Mexico,” is insufficient “to establish prima facie
eligibility for protection under the CAT.” Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010).
2. The BIA properly exercised discretion in denying Petitioner’s request
for remand to delineate his proposed social group. The hearing before the IJ
elicited sufficient information to determine Petitioner’s asserted social group, see
Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018), and the IJ’s
decision correctly identified Petitioner’s proposed social group as “returning
Mexicans from the United States.” We have held that this proposed social group
“is too broad to qualify as a cognizable social group.” Delgado-Ortiz, 600 F.3d at1151–52.
3. The BIA did not err in denying Petitioner’s motion to remand to seek
cancellation relief because Petitioner did not demonstrate sufficient hardship to a
qualifying family member. Petitioner has at least one young child who is a U.S.
citizen and qualifies as a relative under 8 U.S.C. § 1229b(b)(1)(D). But standing
alone, having one or more young children who are U.S. citizens does not satisfy
the “exceptional and extremely unusual hardship” exception to withholding of
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removal. See Partap v. Holder, 603 F.3d 1173, 1175 (9th Cir. 2010). Petitioner
did not present additional information about a qualifying family member, such as
medical concerns or learning disabilities, that might permit relief under this
exception.
PETITION FOR REVIEW DENIED.
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