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 2020-06

Hermelindo Mora-Mendoza v. William Barr ( 2020 )


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  •                               NOT FOR PUBLICATION                         FILED
UNITED STATES COURT OF APPEALS                        JUN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERMELINDO MORA-MENDOZA, AKA                    No.    17-72589
Juan Ramirez-Hernandez,
Agency No. A087-429-163
Petitioner,
v.                                             MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 2, 2020**
Before:      LEAVY, PAEZ, and BENNETT, Circuit Judges.
Hermelindo Mora-Mendoza, 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 (“IJ”) decision denying his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under
    8 U.S.C. § 1252
    . We review de novo questions of law,
Cerezo v. 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. Garcia-Milian v. Holder,
    755 F.3d 1026
    , 1031 (9th Cir. 2014). We deny the petition for review.
Mora-Mendoza does not challenge, and therefore waives, the agency’s
determination that he failed to establish past persecution in Mexico. See Lopez-
Vasquez v. Holder,
    706 F.3d 1072
    , 1079-80 (9th Cir. 2013) (issues not specifically
raised and argued in a party’s opening brief are waived).
The agency did not err in finding that Mora-Mendoza failed to establish
membership in a cognizable 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))); Kwong v. Holder,
    671 F.3d 872
    , 876 (9th
Cir. 2011) (where the BIA cites Matter of Burbano,
    20 I. & N. Dec. 872
    , 874 (BIA
1994) and does not express disagreement with any part of the IJ’s decision, the
BIA adopts the IJ’s decision in its entirety); see also Ramirez-Munoz v. Lynch, 816
2                                    17-
    72589 F.3d 1226
    , 1229 (9th Cir. 2016) (concluding that “imputed wealthy Americans”
returning to Mexico does not constitute a particular social group). Substantial
evidence supports the agency’s determination that Mora-Mendoza otherwise failed
to demonstrate a nexus between the harm he fears in Mexico and a protected
ground. See Zetino v. Holder,
    622 F.3d 1007
    , 1016 (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, Mora-
Mendoza’s withholding of removal claim fails.
Mora-Mendoza requests that we revisit Delgado-Ortiz v. Holder,
    600 F.3d 1148
     (9th Cir. 2010) and Ramirez-Munoz v. Lynch,
    816 F.3d 1226
     (9th Cir. 2016),
but a three-judge panel cannot overrule circuit precedent in the absence of an
intervening decision from a higher court or en banc decision of this court. See
Aleman Gonzalez v. Barr,
    955 F.3d 762
    , 765 (9th Cir. 2020)..
Substantial evidence supports the agency’s denial of CAT relief because
Mora-Mendoza 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
Wakkary v. Holder,
    558 F.3d 1049
    , 1067-68 (9th Cir. 2009) (no likelihood of
torture).
Mora-Mendoza’s request to remand, set forth in his reply brief, is denied.
See Karingithi v. Whitaker,
    913 F.3d 1158
    , 1160-62 (9th Cir. 2019) (notice to
3                                  17-72589
appear need not include time and date of hearing to vest jurisdiction in the
immigration court).
PETITION FOR REVIEW IS DENIED.
4                                    17-72589