LUIS FLORES-BUEROSTRO V. MERRICK GARLAND, No. 18-71269 (9th Cir. 2023)
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FILED NOT FOR PUBLICATION MAR 17 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT LUIS EDUARDO FLORES-BUEROSTRO, AKA Luis Eduardo Flores, AKA Luis Eduardo Flores-Buenrostro, Petitioner, No. U.S. COURT OF APPEALS 18-71269 Agency No. A200-242-974 MEMORANDUM* v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 14, 2023** Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges. Luis Eduardo Flores-Buerostro, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for * 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 protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, including determinations regarding social distinction. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review de novo questions of law, including 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. We deny in part and dismiss in part the petition for review. The BIA did not err in finding that Flores-Buerostro did not establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (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 Conde Quevedo, 947 F.3d at 1243 (proposed social group lacked social distinction because the record failed to establish its members are perceived or recognized as a group by the society in question). To the extent Flores-Buerostro raises a new proposed particular social group in his opening brief, we lack jurisdiction to consider it because he failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th 2 18-71269 Cir. 2004) (petitioner must exhaust issues or claims in administrative proceedings below). Substantial evidence supports the agency’s determination that FloresBuerostro failed to establish that he was or will be persecuted on account of an actual or imputed political opinion. See Sagaydak v. Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (to establish a nexus to political opinion, petitioner must show “(1) that [he] had either an affirmative or imputed political opinion, and (2) that [he was] targeted on account of that opinion”); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 746-47 (9th Cir. 2008) (resistance to a gang’s recruitment efforts alone does not constitute political opinion) abrogated on other grounds by HenriquezRivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); 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”). Thus, Flores-Buerostro’s withholding of removal claim fails. Substantial evidence also supports the agency’s denial of CAT protection because Flores-Buerostro 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 Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 3 18-71269 To the extent Flores-Buerostro claims the BIA violated his due process rights, his contention fails because he has not shown error. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a due-process claim, a petitioner must demonstrate both a violation of rights and prejudice.”). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 4 18-71269
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