ARTURO GUTIERREZ-VARGAS V. WILLIAM BARR, No. 15-72047 (9th Cir. 2019)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUG 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARTURO JHOHARY GUTIERREZVARGAS, No. 15-72047 Agency No. A200-690-635 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 7, 2019** Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges. Arturo Jhohary Gutierrez-Vargas, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, * 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). withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition. Whether a group constitutes a “particular social group” is a question of law that we review de novo, Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010), but we defer to the BIA’s interpretation of governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency’s factual findings. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016). The BIA did not err in finding that Gutierrez-Vargas has not established membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-E-GV-, 26 I & N Dec. 227, 237 (BIA 2014)). Gutierrez-Vargas has not established that persons returning to Mexico from the United States who have assimilated to the culture would be perceived by society as a particular social group. See DelgadoOrtiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (returnees from the United States to Mexico is not a particular social group). Thus, Gutierrez-Vargas’s asylum and withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT relief. The record does not compel the conclusion that Gutierrez-Vargas is “more likely than not” to 2 be tortured by or with the consent or acquiescence of the government if he returns to Mexico. See 8 C.F.R. § 1208.16(c)(2); see also Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Thus, Gutierrez-Vargas’s CAT claim also fails. PETITION FOR REVIEW DENIED. 3

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