Carlos Renteria-Avalos v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS RENTERIA-AVALOS, AKA No. 15-71524
Carlos Renteria,
Agency No. A200-681-812
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2019**
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges
Carlos Renteria-Avalos, 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 (“IJ”) 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 de novo questions
of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the
extent that deference is owed to the BIA’s interpretation of the governing statutes
and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We
review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales,
453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.
Where, as here, the BIA assumes an alien is credible rather than reviewing
the IJ’s adverse credibility finding, we assume credibility and review the BIA’s
opinion on its merits. See Barazza Rivera v. I.N.S., 913 F.2d 1443, 1449–50 (9th
Cir. 1990).
Even assuming changed circumstances justify Renteria-Avalos’ untimely
application for asylum, substantial evidence supports the BIA’s denial of his
asylum claim on its merits. The BIA did not err in finding that Renteria-Avalos
did not establish membership in a cognizable social group. 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 (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))). Thus, Renteria-
Avalos’ asylum and withholding of removal claims fail.
2
Substantial evidence supports the BIA’s denial of CAT relief because
Renteria-Avalos 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).
Finally, the IJ’s failure to consider Renteria-Avalos’ eligibility for voluntary
departure did not violate due process. The IJ gave Renteria-Avalos many
opportunities to advance his voluntary departure request during his hearing, yet his
attorney indicated that there would be no such request. Thus, there was no
violation of due process. 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.”).
PETITION FOR REVIEW DENIED.
3