ARMANDO VEGA SANTISTEBAN V. MERRICK GARLAND, No. 16-73524 (9th Cir. 2022)
Annotate this Case
Download PDF
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED SEP 7 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ARMANDO VEGA SANTISTEBAN, AKA Armando Vega, No. U.S. COURT OF APPEALS 16-73524 Agency No. A200-950-667 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 2, 2022** Pasadena, California Before: M. SMITH and R. NELSON, Circuit Judges, and DRAIN,*** District Judge. Petitioner Armando Vega Santisteban (“Vega”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) * 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 Gershwin A. Drain, United States District Judge for the Eastern District of Michigan, sitting by designation. affirmance of the Immigration Judge’s (“IJ”) denial of his application for withholding of removal under 8 U.S.C. § 1231(b)(3) and § 241(b)(3) of the Immigration and Nationality Act (“INA”) and decision not to accept an untimely filing of background country conditions evidence. We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252. Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). We review de novo the BIA’s “determination of purely legal questions regarding the requirements of the [INA],” Arrieta v. INS, 117 F.3d 429, 430 (9th Cir. 1997) (internal quotation and citation omitted), including whether a group constitutes a “particular social group.” Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We review the BIA’s factual findings as to the existence of persecution for substantial evidence. Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir. 2013). Substantial evidence means the factual finding is “supported by reasonable, substantial and probative evidence in the record.” Id. (internal quotation and citation omitted). We review claims asserting a due process violation de novo. Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020). We deny the petition. 1. Vega argues the BIA erred in affirming the IJ’s conclusion that he did not prove his eligibility for withholding of removal because he did not show the persecution he feared was on account of his membership in a cognizable particular social group. But Vega’s proposed particular social group—“persons in Mexico 2 without economic means who are involved with a woman of a rich family”—is not legally cognizable because it is not composed of members who share a common immutable characteristic and is not socially distinct in Mexican society. See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237, 242 (BIA 2014). Wealth and poverty are alterable conditions, cf. Macedo Templos v. Wilkinson, 987 F.3d 877, 881 (9th Cir. 2021), and while Vega argues that being born into poverty is a common immutable characteristic, his proposed particular social group is not so limited. Vega’s proposed social group, moreover, is not socially distinct in Mexican society. Vega only argues that a specific subcategory of persons without economic means in Mexico—namely, “street children”—are recognized by Mexican society. Even if he is right, that does not mean that members of the particular social group he proposed, which is not limited to street children, are too. Because Vega’s proposed particular social group is not legally cognizable, we need not determine whether there is a nexus between any persecution of Vega and his membership in a protected group. 2. Vega argues that the BIA erred as a matter of law in finding there was no procedural due process violation when the IJ excluded background country conditions documents. But Vega cannot demonstrate either a violation of rights or prejudice. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). The IJ has broad discretion to enforce filing deadlines, see 8 C.F.R. § 1003.31(h) (2022); 3 Owino v. Holder, 771 F.3d 527, 532 (9th Cir. 2014), and provided Vega more than two years to prepare and submit evidence for his merits hearing on removal—plenty of time for him to reasonably present his case. See Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012). Vega concedes that his filing of country background evidence was not timely, but fails to present a compelling reason for the delay. Even if the IJ’s exclusion of the documents had violated Vega’s due process rights, it was not prejudicial. Vega asserts the IJ’s exclusion prejudiced him because he assumes the documents would establish that his proposed particular social group is legally cognizable. But because the documents only concern street children and homeless people in Mexico, rather than members of his proposed particular social group, Vega cannot show that the IJ’s acceptance of the documents might have led to a different result. Vilchez, 682 F.3d at 1199. PETITION DENIED. 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
