Sandra MacIas Cervantes v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA MACIAS CERVANTES, No. 17-70350
Petitioner, Agency No. A208-418-187
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 5, 2022**
Portland, Oregon
Before: WATFORD, R. NELSON, and LEE, Circuit Judges.
Sandra Macias Cervantes, 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 (“IJ”) decision denying her applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We review the BIA’s denial of asylum, withholding of removal, and relief
under CAT for substantial evidence. Reyes v. Lynch, 842 F.3d 1125, 1137, 1140
(9th Cir. 2016); Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011). We review the
denial of a motion for continuance for abuse of discretion. Garcia v. Lynch, 798
F.3d 876, 881 (9th Cir. 2015). We have jurisdiction under 8 U.S.C. § 1252. We
dismiss in part and deny in part the petition for review.
1. Substantial evidence supports the BIA’s conclusion that Macias
Cervantes’s claimed social group lacks particularity and social distinction. Macias
Cervantes claimed that she is threatened on account of her membership in a
particular social group: “individuals who refuse to submit to the demands of the
Caballeros Templarios cartel.” This claimed group is too amorphous and there is no
“evidence that members of the proposed group would be perceived as a group by
society.” Reyes, 842 F.3d at 1135–36 (quoting Henriquez-Rivas v. Holder, 707 F.3d
1081, 1088–89 (9th Cir. 2013) (en banc)). Macias Cervantes’s group would include
people of all ages and genders, with no other limitations by geography or
background. We have previously rejected groups that were more precisely defined.
See, e.g., Ramos-Lopez v. Holder, 563 F.3d 855, 856 (9th Cir. 2009) (rejecting a
proposed social group of “young Honduran men who have been recruited by the MS-
13, but who refuse to join”).
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Additionally, the BIA properly applied the social distinction standard to
Macias Cervantes’s proposed social group. It specifically used the phrase “social
distinction” when conducting its analysis. And it quoted language suggesting that
on-sight visibility was not necessary: “the society in question need not be able to
easily identify who is a member of the group.”
2. Macias Cervantes failed to exhaust her CAT claim before the BIA. The
IJ determined that Macias Cervantes could relocate to avoid the risk of torture, but
Macias Cervantes did not challenge that determination before the BIA. To properly
bring an argument before this court on appeal, a petitioner must first raise the issue
before the agency. Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (citing 8
U.S.C. § 1252(d)(1)). Therefore, we lack jurisdiction to consider this issue.
3. The IJ did not abuse its discretion in denying Macias Cervantes’s
motion for continuance. Regulations permit an IJ to “grant a motion for continuance
for good cause shown.” 8 C.F.R. § 1003.29. This decision is within “the sound
discretion of the judge and will not be overturned except on a showing of clear
abuse.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (per
curiam) (quoting De la Cruz v. INS, 951 F.2d 226, 229 (9th Cir. 1991)). Macias
Cervantes has repeatedly failed to identify the evidence she would obtain if granted
a continuance. And the IJ previously granted a continuance to her. It was not an
abuse of discretion to deny a subsequent continuance.
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Nor was she denied due process by the IJ’s denial of her motion. “To prevail
on a due process challenge to deportation proceedings, [a petitioner] must show error
and substantial prejudice.” Lata v. I-N-S-, 204 F.3d 1241, 1246 (9th Cir. 2000)
(citing Getachew v. INS, 25 F.3d 841, 845 (9th Cir. 1994)). “A showing of prejudice
is essentially a demonstration that the alleged violation affected the outcome of the
proceedings.” Id. But because Macias Cervantes did not or cannot identify any
evidence that she would have obtained had she been granted a continuance, she
cannot show prejudice. The outcome cannot be affected by unknown evidence.
PETITION DISMISSED IN PART, DENIED IN PART.
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