BULMARA GANDARILLA OLIVAREZ V. WILLIAM BARR, No. 19-71314 (9th Cir. 2020)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 8 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT BULMARA GANDARILLA OLIVAREZ, Petitioner, v. No. U.S. COURT OF APPEALS 19-71314 Agency No. A209-390-688 MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 2, 2020** Before: WALLACE, CLIFTON, and BRESS, Circuit Judges. Bulmara Gandarilla Olivarez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review factual findings 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). substantial evidence. 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 also review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the petition for review. Substantial evidence supports the determination that Gandarilla Olivarez failed to establish a nexus between the harm she experienced or fears in Mexico and a protected ground, including family membership. See 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”); 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 BIA did not err in concluding that Gandarilla Olivarez failed to establish membership in a cognizable social group related to business ownership. 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 2 19-71314 (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))). We do not consider Gandarilla Olivarez’s social group of “family members who own businesses and are uncooperative with the narcotraffickers” because the BIA did not decide the issue, see Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA), and Gandarilla Olivarez does not contend the BIA erred in concluding that claim was not properly before it, see Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver). To the extent Gandarilla Olivarez raises a returnee-based social group in her opening brief, we lack jurisdiction to consider it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented below). Thus, Gandarilla Olivarez’s asylum and withholding of removal claims fail. Substantial evidence also supports the BIA’s denial of CAT relief because Gandarilla Olivarez failed to show it is more likely than not she 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). Gandarilla Olivarez’s contention that the IJ and BIA violated her due 3 19-71314 process rights or otherwise erred in their analyses of her case fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial prejudice to prevail on a due process claim). As stated in the Court’s July 23, 2019 order, the temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; and DISMISSED in part. 4 19-71314
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