RICARDO HERNANDEZ-MARTINEZ V. WILLIAM BARR, No. 16-73475 (9th Cir. 2020)
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NOT FOR PUBLICATION FILED APR 15 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT RICARDO GABRIEL HERNANDEZMARTINEZ, No. U.S. COURT OF APPEALS 16-73475 Agency No. A206-673-212 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 7, 2020** Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges. Ricardo Gabriel Hernandez-Martinez, 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 withholding of removal and relief under the Convention Against * 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). Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review questions of law de novo, 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. Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s determination that HernandezMartinez failed to establish past persecution based on the events his mother experienced. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010) (“An applicant alleging past persecution has the burden of establishing that (1) his treatment rises to the level of persecution; (2) the persecution was on account of one or more protected grounds; and (3) the persecution was committed by the government, or by forces that the government was unable or unwilling to control.”). Substantial evidence also supports the agency’s determination that Hernandez-Martinez failed to establish an objectively reasonable fear of future persecution based on these events. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution “too speculative”). Substantial evidence supports the agency’s determination that HernandezMartinez failed to establish that the harm he experienced or fears from organized 2 criminal groups was or would be on account of a protected ground. 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”). The agency did not err in determining that Hernandez-Martinez failed to 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, 1059-60 (9th Cir. 2019) (concluding that “individuals ‘returning to Mexico [from] the United States [who] are believed to be wealthy’” was too broad to constitute a cognizable social group); Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (concluding “imputed wealthy Americans” returning to Mexico did not constitute a particular social group). To the extent Hernandez-Martinez proposes new particular social groups, we lack jurisdiction to consider them. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). Thus, Hernandez-Martinez’s withholding of removal claim fails. 3 Substantial evidence supports the agency’s denial of CAT relief because Hernandez-Martinez failed to show that it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to Mexico. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The record does not support Hernandez-Martinez’s contentions that the agency ignored evidence and misapplied the law. We do not reach Hernandez-Martinez’s contentions regarding eligibility for asylum, credibility, and changed country conditions. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the court’s review is limited to the actual grounds relied upon by the BIA). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 4
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