JESUS GUTIERREZ FERNANDEZ V. MERRICK GARLAND, No. 17-71182 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 27 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JESUS GUTIERREZ FERNANDEZ, AKA Jesus Gutierrez, No. U.S. COURT OF APPEALS 17-71182 Agency No. A095-728-625 Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 11, 2022** Before: McKEOWN, CHRISTEN, and BRESS, Circuit Judges. Jesus Gutierrez Fernandez, 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, withholding of removal, and relief under the Convention Against Torture (“CAT”). * 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). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Conde Quevedo v. Barr, 947 F.3d 1238, 1241 (9th Cir. 2020). 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. Id. at 1241-42. We review de novo claims of due process violations in immigration proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny the petition for review. Substantial evidence supports the agency’s determination that Gutierrez Fernandez failed to establish that the harm he experienced or fears was or would be on account of his family membership or imputed political opinion. 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”); see also Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is established, an applicant must still show that “persecution was or will be on account of his membership in such group”). The agency did not err in concluding that Gutierrez Fernandez’s returneebased social group was not cognizable. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (to demonstrate membership in a particular social group, an applicant must “establish that the group is (1) composed of members who share a 2 17-71182 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 Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010) (proposed social group “returning Mexicans from the United States” lacked particularity). Thus, Gutierrez Fernandez’s asylum and withholding of removal claims fail. Substantial evidence also supports the agency’s denial of CAT relief because Gutierrez Fernandez 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 Mexico. See Zheng v. Holder, 644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative). Gutierrez Fernandez’s contentions that the agency violated his right to due process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (error and prejudice are required to prevail on a due process claim); see also Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner did not overcome the presumption that the BIA reviewed the record). The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED. 3 17-71182
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