CARMELA PEDROZA ALVARADO V. MERRICK GARLAND, No. 20-70172 (9th Cir. 2021)
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FILED NOT FOR PUBLICATION SEP 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CARMELA PEDROZA ALVARADO; et al., No. 20-70172 Agency Nos. Petitioners, A202-152-990 A202-152-991 A202-152-992 v. MERRICK B. GARLAND, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted September 14, 2021** Before: PAEZ, NGUYEN, and OWENS, Circuit Judges. Carmela Pedroza Alvarado, Joel Cervantes Brito, and their son, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their applications for asylum, withholding of removal, and relief under the * 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). Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo claims of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). 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 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. We deny in part and dismiss in part the petition for review. Petitioners’ contentions that the agency violated their right to due process fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due process claim). Substantial evidence supports the agency’s determination that petitioners failed to establish that their proposed social groups are socially distinct. See Conde Quevedo, 947 F.3d at 1243 (substantial evidence supported the agency’s determination that petitioner’s proposed social group was not cognizable because of the absence of society-specific evidence of social distinction). Thus, the BIA did not err in concluding that petitioners did not establish membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social group, “[t]he 2 20-70172 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))). Substantial evidence also supports the agency’s determination that petitioners failed to establish the harm they experienced or fear was or would be on account of a political opinion. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (rejecting political opinion claim where petitioner did not present sufficient evidence of political or ideological opposition to the gang’s ideals or that the gang imputed a particular political belief to the petitioner). Our conclusion is not affected by the differing “one central reason” and “a reason” nexus standards applicable to asylum and withholding of removal claims, respectively. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (discussing Zetino v. Holder, 622 F.3d 1007 (9th Cir. 2010), having drawn no distinction between the standards where there was no nexus at all to a protected ground). We reject as unsupported by the record petitioners’ remaining contentions that the BIA erred in its analysis of their political opinion claim and deny the request to remand, raised in their opening brief, for further consideration of the political opinion claim. 3 20-70172 We lack jurisdiction to consider petitioners’ pattern or practice claim. 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, petitioners’ asylum and withholding of removal claims fail. Substantial evidence also supports the agency’s denial of CAT relief because Pedroza Alvarado and Cervantes Brito failed to show it is more likely than not they 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). We do not consider the materials petitioners reference in their opening brief that are not part of the administrative record, see Fisher v. INS, 79 F.3d 955, 96364 (9th Cir. 1996) (en banc), or the arguments raised for the first time in their reply brief, see Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for the first time in the reply brief are waived.”). The government’s motion to strike is denied as unnecessary. The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 4 20-70172
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