Kelvin Moreno-Navarrete v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN OSVALDO MORENO- No. 18-72822
NAVARRETE, AKA Kelvin Moreno-
Navarrete, Agency No. A099-651-503
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Petitioner Kelvin Moreno-Navarrete (Moreno-Navarrete) petitions for review
of the order of the Board of Immigration Appeals (BIA). The BIA affirmed 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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
decision of the immigration judge (IJ) denying Moreno-Navarrete’s applications for
withholding of removal under the Immigration and Nationality Act (INA) and relief
under the Convention Against Torture (CAT). This court has jurisdiction under 8
U.S.C. § 1252. Because the parties are familiar with the facts, we do not recount
them here, except as necessary to provide context to our ruling. We DENY the
petition for review and affirm the BIA’s decision.
The BIA determined that, because Moreno-Navarrete did not raise the
argument before the IJ, he waived his assertion that “he is a member of a cognizable
particular social group defined as a person who reported gang members to the police
and, as a result of which, the gang members have been put in jail and now seek
revenge against him.” Moreno-Navarrete does not dispute that he waived this issue.
Thus, the basis for Moreno-Navarrete’s withholding claim is waived. See Kumar v.
Gonzales, 444 F.3d 1043, 1056 (9th Cir. 2006); Koerner v. Grigas, 328 F.3d 1039,
1048 (9th Cir. 2003).
Even if not waived, the purported social group is not cognizable. In
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013), we ruled that the BIA
erred when “it failed to consider significant evidence that Salvadoran society
recognizes the unique vulnerability of people who testify against gang members in
criminal proceedings, because gang members are likely to target these individuals
as a group.” Id. at 1092. In addition to explicitly noting that testimony in court
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formed the basis of the particular social group, we cited the petitioner’s evidence
about how “the Salvadoran legislature enacted a special witness protection law in
2006 to protect people who testify against violent criminal elements . . . in
Salvadoran court.” Id. In contrast, Moreno-Navarrete bases his purported social
group on the fact that he “[c]all[ed] the police on gang members resulting in two
arrests.” Moreno-Navarrete never asserts that he testified in open court against such
gang members. Therefore, applying Henriquez-Rivas, Moreno-Navarrete has not
asserted that he is a member of a particular social group for the purposes of the INA.
Moreno-Navarrete’s CAT claim focuses entirely on the Guatemalan
government’s inability to “curb violence and contain criminal gangs and mafias,”
citing a 2013 report from the Department of Justice. Nowhere does Moreno-
Navarrete connect this general violence in Guatemala to show that “it is more likely
than not that he . . . would be tortured if removed to” that country. 8 C.F.R.
§ 1208.16(c)(2). Moreno-Navarrete’s “generalized evidence of violence and crime
in [Guatemala] is not particular to [him] and is insufficient to meet this standard.”
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). The BIA had
substantial evidence to conclude that Moreno-Navarrete was not eligible for CAT
relief. See Flores-Vega v. Barr, 932 F.3d 878, 887 (9th Cir. 2019).
Accordingly, we DENY the petition for review and affirm the decision of the
BIA.
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