Francisco Antunez-Contreras v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO ANTUNEZ-CONTRERAS, No. 15-73945
Petitioner, Agency No. A200-246-150
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Francisco Antunez-Contreras, 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 decision denying his application for withholding of
removal and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v.
*
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).
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.
The BIA did not err in finding that Antunez-Contreras’ returnee-based social
group was not cognizable. 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))); see also Barbosa v. Barr, 926 F.3d 1053, 1060 (9th Cir. 2019)
(finding that individuals returning to Mexico from the United States who are
believed to be wealthy does not constitute a particular social group). Further,
substantial evidence supports the agency’s determination that Antunez-Contreras
failed to establish he would be persecuted on account of a protected ground,
including membership in a family-based social group. See Ayala v. Holder, 640
F.3d 1095, 1097 (9th Cir. 2011) (even if membership in a particular social group is
established, an applicant must still show that “persecution was or will be on
account of his membership in such group”); Zetino v. Holder, 622 F.3d 1007, 1016
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(9th Cir. 2010) (an applicant’s “desire to be free from harassment by criminals
motivated by theft or random violence by gang members bears no nexus to a
protected ground”). Thus, Antunez-Contreras’ withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Antunez-Contreras 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).
As stated in the court’s April 5, 2016 order, the temporary stay of removal
remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
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