JOSE FELIPE V. MERRICK GARLAND, No. 17-71829 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 18 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOSE BETANCOURT FELIPE, AKA Jose Betancord, No. U.S. COURT OF APPEALS 17-71829 Agency No. A206-410-286 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Jose Betancourt Felipe, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial evidence the agency’s factual findings. Id. at 1241. We deny the petition for review. Substantial evidence supports the agency’s determination that Betancourt Felipe failed to establish he was or would be persecuted on account of his membership in a family-based particular social group. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’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”). As to Betancourt Felipe’s proposed group of males who do not comply with the requests of gangs, the BIA did not err in concluding that Betancourt Felipe failed to establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir. 2009) 2 17-71829 (particular social group of young men in Guatemala who resist gang recruitment not cognizable), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Thus, Betancourt Felipe’s asylum and withholding of removal claims fail. We do not address Betancourt Felipe’s contention as to persecution because the BIA did not deny relief on this ground. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision of the BIA, we consider only the grounds relied upon by that agency.” (citation and internal quotation marks omitted)). Substantial evidence also supports the agency’s denial of CAT protection because Betancourt Felipe failed to show it is more likely than not he will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED. 3 17-71829
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