Andres Diaz-Vazquez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDRES DIAZ-VAZQUEZ, No. 17-72114
Petitioner, Agency No. A205-490-717
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
Andres Diaz-Vazquez, 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 applications for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). Our
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,
*
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).
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 in part and dismiss in part the
petition for review.
The record does not compel the conclusion that Diaz-Vazquez applied for
asylum within a reasonable time of any changed or extraordinary circumstances as
to excuse the untimely filing of his asylum application. See 8 C.F.R.
§ 1208.4(a)(4), (5); see also Toj-Culpatan v. Holder, 612 F.3d 1088, 1091-92 (9th
Cir. 2010).
We lack jurisdiction to consider Diaz-Vazquez’s contention that the delay in
filing his asylum application was due to court scheduling because he failed to raise
it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)
(court lacks jurisdiction to review claims not presented to the agency).
Thus, Diaz-Vazquez’s asylum claim fails.
The agency did not err in finding that Diaz-Vazquez 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
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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,
1059-60 (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); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th Cir. 2010)
(concluding “returning Mexicans from the United States” did not constitute a
particular social group).
Substantial evidence supports the agency’s determination that Diaz-Vazquez
otherwise failed to demonstrate that the harm he fears in Mexico would be on
account of 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, Diaz-Vazquez’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Diaz-Vazquez failed to show it is more likely than not he would 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).
We do not consider the materials Diaz-Vazquez references in his opening
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brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963-64 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative
record).
The record does not support Diaz-Vazquez’s contentions that the BIA failed
to consider evidence or otherwise erred in its analysis of his claims. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (agency need not write an
exegesis on every contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.
2006) (petitioner did not overcome the presumption that the BIA reviewed the
record).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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