Andres Avina Cruz v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
AUG 15 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES ANTONIO AVINA CRUZ, No. 16-73798
Petitioner, Agency No. A206-150-594
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2022**
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, Circuit Judges.
Petitioner Andres Antonio Avina Cruz (Avina Cruz), a native and citizen of
Mexico, petitions for review of a decision from the Board of Immigration Appeals
(BIA) dismissing his appeal from the denial of his applications for withholding of
*
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).
removal and protection under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252 and we DENY the petition for review.
“We review the denial of . . . withholding of removal and CAT claims for
substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019) (citations omitted). “Under this standard, we must uphold the agency
determination unless the evidence compels a contrary conclusion.” Id. (citation
omitted). Because the BIA conducted its own review of the evidence and law, our
review is limited to the BIA’s decision, except to the extent the decision of the
Immigration Judge (IJ) is expressly adopted. See Guerra v. Barr, 974 F.3d 909,
911 (9th Cir. 2020), as amended.
1. Avina Cruz asserted membership in two particular social groups: (1)
family group of landowners; and (2) individuals returning to Mexico who are
perceived as wealthy. For both proposed social groups, the BIA agreed with the IJ
that Avina Cruz did not establish a nexus to his withholding of removal claim. See
id. The BIA also determined that the proffered group of individuals returning to
Mexico who are perceived as wealthy was not a cognizable social group.
2. Avina Cruz did not address the BIA’s holding that his second proffered
group was not cognizable, and he has thus waived this argument. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th Cir. 1996). In any event,
2
we have expressly held that a proposed group of “imputed wealthy Americans” is
not a cognizable group. Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir.
2016) (citation omitted).
3. Substantial evidence supports the conclusion that Avina Cruz did not
establish a nexus to his proffered family group of landowners, because there is no
record evidence that the robbery he described in his testimony in 1999 was
connected in any way to Petitioner’s family or to the fact that his family owns land.
See Zetino v. Holder, 622 F.3d 1007, 1015-16 (9th Cir. 2010), as amended
(concluding that the petitioner did not demonstrate the required nexus because he
“did not present evidence that the bandits targeted his family on account of a
protected ground”). An individual’s desire to be free from theft is not sufficient to
support a nexus to a protected ground. See id. at 1016.
4. Any argument that the agency applied an incorrect standard in deciding
the claim for withholding of removal is foreclosed. See Barajas-Romero v. Lynch,
846 F.3d 351, 359-60 (9th Cir. 2017) (drawing no distinction between the proof
required for asylum relief and withholding of removal when “there was no nexus at
all”).
5. Avina Cruz’s Opening Brief did not address the denial of CAT relief.
Avina Cruz has thus waived any argument regarding this claim. See
3
Martinez-Serrano, 94 F.3d at 1259-60. In any event, the record does not reflect a
likelihood of torture if Avina Cruz is returned to Mexico. See Eneh v. Holder, 601
F.3d 943, 948 (9th Cir. 2010) (explaining that “a petitioner must show for purposes
of CAT relief that someone—either a government official or private
actor—specifically intended to torture him or her”) (citation omitted).1
PETITION DENIED.
1
We reject Avina Cruz’s argument, made for the first time in a letter filed
pursuant to Federal Rule of Appellate Procedure 28(j), that the immigration court
lacked jurisdiction based on claimed deficiencies in the notice to appear. See
United States v. Bastide-Hernandez, 39 F.4th 1187 (9th Cir. 2022) (holding that
the failure of a notice to appear to include time and date information for a hearing
does not deprive the immigration court of subject matter jurisdiction).
4