Tito Juarez Sopon v. Merrick Garland ( 2022 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JUN 24 2022
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TITO ANTONIO JUAREZ SOPON, AKA                  Nos. 17-70233
    Tito Juarez,                                         19-72941
    Petitioner,                     Agency No. A206-412-120
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 15, 2022**
    Before:      SILVERMAN, WATFORD, and FORREST, Circuit Judges.
    In this consolidated case, Tito Antonio Juarez Sopon, a native and citizen of
    Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)
    order dismissing his appeal from an immigration judge’s (“IJ”) decision denying
    his 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”) (petition No. 17-70233) and the BIA’s order
    denying his motion to reopen and terminate proceedings (petition No. 19-72941).
    Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . 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. Conde Quevedo v. Barr, 
    947 F.3d 1238
    , 1241-42 (9th Cir. 2020). We
    review for substantial evidence the agency’s factual findings. 
    Id. at 1241
    . We
    review de novo claims of due process violations in immigration proceedings.
    Simeonov v. Ashcroft, 
    371 F.3d 532
    , 535 (9th Cir. 2004). We review for abuse of
    discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder, 
    597 F.3d 983
    , 986 (9th Cir. 2010). We deny in part and dismiss in part petition No. 17-
    70233, and deny petition No. 19-72941.
    As to petition No. 17-70233, the agency did not err in concluding that Juarez
    Sopon 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 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 Barrios v. Holder, 
    581 F.3d 849
    , 854-55 (9th Cir. 2009) (young men in
    2                                      19-72941
    Guatemala who resist gang recruitment did not constitute a particular social
    group), abrogated in part by Henriquez-Rivas v. Holder, 
    707 F.3d 1081
    , 1093 (9th
    Cir. 2013). Thus, Juarez Sopon’s asylum and withholding of removal claims fail.
    To the extent Juarez Sopon raises a new particular social group or a political
    opinion claim, we lack jurisdiction to consider them. See Barron v. Ashcroft, 
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not
    presented to the agency).
    Substantial evidence also supports the agency’s denial of CAT relief because
    Juarez Sopon failed to show it is more likely than not he would be tortured by or
    with the consent or acquiescence of the government if returned to Guatemala. See
    Aden v. Holder, 
    589 F.3d 1040
    , 1047 (9th Cir. 2009). We reject Juarez Sopon’s
    contention that the agency erred in its legal analysis or ignored evidence or
    arguments in denying his CAT claim. See Najmabadi, 
    597 F.3d at 990
     (agency
    adequately considered evidence and sufficiently announced its decision).
    We also reject Juarez Sopon’s contention that the IJ violated his due process
    rights by denying him a full and fair hearing, see Lata v. INS, 
    204 F.3d 1241
    , 1246
    (9th Cir. 2000) (error and prejudice required to prevail on a due process claim),
    and we reject as unsupported by the record Juarez Sopon’s contentions that the
    BIA ignored these due process contentions.
    As to petition No. 19-72941, the BIA did not abuse its discretion in denying
    3                                      19-72941
    Juarez Sopon’s motion to reopen and terminate proceedings because his
    contentions that the IJ lacked jurisdiction over his proceedings are foreclosed
    by Karingithi v. Whitaker, 
    913 F.3d 1158
    , 1160-62 (9th Cir. 2019) (lack of hearing
    information in notice to appear did not deprive immigration court of jurisdiction
    where later notice of hearing provided missing information).
    We reject Juarez Sopon’s claim that his due process rights were violated due
    to insufficient notice of his proceedings. See Lata, 
    204 F.3d at 1246
    .
    The temporary stay of removal remains in place until issuance of the
    mandate.
    PETITION NO. 17-70233 DENIED in part; DISMISSED in part.
    PETITION NO. 19-72941 DENIED.
    4                                   19-72941