Villa Coronel v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ULISES VILLA CORONEL, No. 22-107
Agency No.
Petitioner, A205-320-504
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023 **
Pasadena, California
Before: M. SMITH and DESAI, Circuit Judges, and AMON, District Judge.***
Petitioner Ulises Villa Coronel challenges the Board of Immigration
Appeals’ (BIA) denial of his application for withholding of removal, protection
pursuant to the Convention Against Torture (CAT), and post-conclusion
voluntary departure relief. We have jurisdiction pursuant to 8 U.S.C. § 1252*
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 Carol Bagley Amon, United States District Judge
for the Eastern District of New York, sitting by designation.
and deny the petition.
Because the parties are familiar with the facts, we do not recount them
here except as necessary to provide context. We review legal questions de novo
and factual determinations for substantial evidence. Ixcot v. Holder, 646 F.3d
1202, 1206 (9th Cir. 2011). Because the BIA affirmed the decision of the IJ and
incorporated portions of the IJ’s decision, “we treat the incorporated parts of the
IJ’s decision as the BIA’s.” Maie v. Garland, 7 F.4th 841, 845 (9th Cir. 2021)
(quotation and citation omitted).
1. The BIA did not err in denying withholding of removal because
Petitioner failed to establish that it is more likely than not that he will be
persecuted on account of any of his proposed protected grounds. See 8 U.S.C.
§ 1231(b)(3). With respect to Petitioner’s proposed particular social group
(PSG) of “returnees to Mexico from the United States,” he has not made the
requisite showing that the group is “defined with particularity” and “socially
distinct within the society in question.” See Macedo Templos v. Wilkinson, 987
F.3d 877, 882 (9th Cir. 2021) (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
227, 237 (B.I.A. 2014)). Moreover, we have previously rejected substantially
the same proposed PSG, and Petitioner has not demonstrated that his proposed
group is distinguishable. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–52
(9th Cir. 2010) (“‘[R]eturning Mexicans from the United States’ . . . is too broad
to qualify as a cognizable social group.”).
With respect to Petitioner’s proposed PSG of “Mexicans who oppose the
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country’s gangs and cartels,” substantial evidence supports the BIA’s finding
that Petitioner failed to establish a nexus between the alleged harm and his
proposed social group. See Riera-Riera v. Lynch, 841 F.3d 1077, 1081 (9th Cir.
2016) (“The lack of a nexus to a protected ground is dispositive of [a
petitioner’s] . . . withholding of removal claim[].”). Relatedly, Petitioner has
not established that his proposed anti-cartel imputed political opinion is distinct
from a general “desire to be free from . . . violence by gang members[, which]
bears no nexus to a protected ground.” See Zetino v. Holder, 622 F.3d 1007,
1016 (9th Cir. 2010).
2. Substantial evidence supports the denial of CAT relief. Petitioner
has not established that he will more likely than not be tortured by or with the
consent or acquiescence of the government if removed to Mexico. See
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020); 8 C.F.R.
§ 1208.16(c)(2).
3. Finally, the BIA did not err by denying discretionary voluntary
departure relief pursuant to 8 U.S.C. § 1229c(b)(1). Our review over challenges
to the denial of voluntary departure is limited to “constitutional claims or
questions of law,” which includes “whether the BIA and IJ failed to consider the
appropriate factors.” Zamorano v. Garland, 2 F.4th 1213, 1221 (9th Cir. 2021)
(citations omitted); see 8 U.S.C. § 1252(a)(2)(B)(i). In this case, the BIA
properly weighed the factors in Petitioner’s favor, including that Petitioner
entered the United States as a child and has significant family ties here,
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balanced them against Petitioner’s criminal history, and exercised its discretion
to deny relief. See Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012)
(explaining that the agency “must weigh both favorable and unfavorable
factors” in granting or denying voluntary departure and noting that a petitioner’s
criminal record is a factor to be considered); Zamorano, 2 F.4th at 1221 (noting
that “family ties within the United States” and “residence of long duration in
this country” constitute favorable factors).
The stay of removal remains in place until the mandate issues.
PETITION DENIED.
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