ISAAC GARCIA-RUIZ V. WILLIAM BARR, No. 16-72484 (9th Cir. 2019)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 27 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ISAAC GARCIA-RUIZ, AKA Aruiz Isaal Garcia, AKA Isaac Garcia Ruiz, Pedro Martines Romires, No. U.S. COURT OF APPEALS 16-72484 Agency No. A095-809-013 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. Isaac Garcia-Ruiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing Garcia-Ruiz’s appeal from an immigration judge’s (“IJ”) decision denying Garcia-Ruiz’s applications for cancellation of removal, asylum, withholding of removal and relief under the * 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). Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s interpretation of the 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. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Garcia-Ruiz’s asylum claim fails because he filed his asylum application outside the one-year deadline, and the record does not compel the conclusion that he established changed or extraordinary circumstances to excuse the untimely filing. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(4)-(5). The BIA did not err in finding that Garcia-Ruiz did not establish membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular 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))); see also Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (returnees with perceived wealth is not a cognizable social group). Thus, Garcia-Ruiz’s withholding of removal claim fails. 2 Garcia-Ruiz’s challenge to the IJ’s failure to sua sponte administratively close his case also fails. Even assuming that the standard in Matter of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012), applies1, the record before the IJ did not support administrative closure. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 891 (9th Cir. 2018) (assessing whether administrative closure is appropriate with reference to the non-exhaustive list of six factors articulated in Avetisyan); Avetisyan, 25 I. & N. Dec. at 696 (cautioning that administrative closure is not appropriate “if the request is based on a purely speculative event or action”). Garcia-Ruiz waived any challenge to the agency’s denial of his cancellation of removal claim or his CAT claim by omitting them from his opening brief. Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). PETITION FOR REVIEW DENIED. 1 In May 2018, the Attorney General issued an opinion overruling Avetisyan and clarifying that “immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.” Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (Att’y Gen. 2018). 3

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