NICOLAS REYES-GUZMAN V. MERRICK GARLAND, No. 20-72954 (9th Cir. 2021)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 18 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT NICOLAS REYES-GUZMAN, Petitioner, v. No. U.S. COURT OF APPEALS 20-72954 Agency No. A213-080-835 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 8, 2021** Before: CANBY, TASHIMA, and MILLER, Circuit Judges. Nicolas Reyes-Guzman, 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 applications for cancellation of removal, 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). Our jurisdiction is governed by 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 dismiss in part and deny in part the petition for review. We lack jurisdiction to review the agency’s discretionary determination that Reyes-Guzman did not show exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). The petition does not raise a colorable legal or constitutional claim over which we retain jurisdiction. See 8 U.S.C. § 1252(a)(2)(D); Martinez-Rosas, 424 F.3d at 930. Substantial evidence supports the agency’s determination that ReyesGuzman failed to establish he suffered harm that rises to the level of persecution. See Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 fn. 6 (9th Cir. 2003) (unspecified threats were insufficient to rise to the level of persecution). The agency did not err in concluding that Reyes-Guzman 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 2 20-72954 social 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))). We reject as unsupported by the record Reyes-Guzman’s contention that the BIA failed to sufficiently articulate, or otherwise erred in, its cognizability determination. Reyes-Guzman does not challenge the agency’s determination that he otherwise failed to establish a nexus to a protected ground. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are waived). Thus, Reyes-Guzman’s withholding of removal claim fails. Substantial evidence supports the agency’s denial of CAT relief because Reyes-Guzman 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). The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DISMISSED in part; DENIED in part. 3 20-72954
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