Luis Figueroa Rodriguez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ALBERTO FIGUEROA No. 18-71704
RODRIGUEZ,
Agency No. A 045-123-742
Petitioner,
v.
WILLIAM BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 4, 2020**
Portland, Oregon
Before: FERNANDEZ and PAEZ, Circuit Judges, and BURGESS,*** District
Judge.
*
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 Timothy M. Burgess, United States Chief District
Judge for the District of Alaska, sitting by designation.
Luis Alberto Figueroa Rodriguez, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum,
withholding of removal, and Convention Against Torture (“CAT”) relief. We have
jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the petition for review.
“We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014)
(internal quotations omitted). “In order to reverse the BIA, we must determine
‘that the evidence not only supports [a contrary] conclusion, but compels it—and
also compels the further conclusion’ that the petitioner meets the requisite standard
for obtaining relief.” Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.
2014) (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481 n. l (1992)) (emphasis
in original). Where the BIA has reviewed and incorporated portions of the IJ’s
decision as its own, “we treat the incorporated parts of the IJ’s decision as the
BIA’s.” Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002).
Figueroa seeks asylum because he fears persecution on account of his
imputed membership in the proposed particular social group, “Mexicans assumed
to be involved in the theft of Pemex fuel by corrupt Mexican officials and cartels.”
Figueroa left Mexico in March 2016, approximately four months after he was
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shot in the leg while standing outside his employer’s auto shop. The isolated
incident occurred when unknown gunmen attacked a group of individuals in a
restaurant next door to the auto shop and resulted in the murder of five people. The
BIA determined that the shooting was related to revenge between two rival criminal
groups and not because of Figueroa’s imputed membership in a particular social
group.
The BIA did not err in finding that Figueroa failed to establish membership
in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131
(9th Cir. 2016) (observing that, 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))). The BIA properly
found that Figueroa’s proposed social group lacked distinction and was therefore
not cognizable because the record contains no evidence that such persons are
recognized as a particular social group that exists and is perceived as distinct within
Mexican society. See, e.g., Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092–93
(9th Cir. 2013) (en banc). Substantial evidence supports the BIA’s determination
that Figueroa otherwise failed to demonstrate a nexus between the harm he
experienced and a protected ground. See 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.”). Accordingly, Figueroa has not met his burden of establishing
eligibility for asylum or withholding of removal. Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003).
Likewise, the BIA did not err in affirming the denial of CAT relief where
Figueroa failed to show that it was more likely than not that he would be tortured
by or with the consent or acquiescence of the government if returned to Mexico.
Substantial evidence supports the determination that the gunmen were not Mexican
government officials or other persons acting in an official capacity. For instance,
Figueroa’s initial interview and news accounts of the shooting incident do not
mention police uniforms and describe the gunmen arriving in private vehicles. The
evidence does not compel the conclusion that the unknown assailants were
Mexican government officials or other persons acting in an official capacity.
Figueroa’s evidence of violence in Mexico is not particular to him and, therefore,
is insufficient to meet the standard for CAT protection. See Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). Moreover, the record demonstrates
Figueroa safely relocated within Mexico on two separate occasions to avoid harm.
Finally, the record does not support Figueroa’s contention that the BIA failed
to consider all relevant evidence or otherwise erred in considering relief. Thus, the
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BIA correctly concluded that Figueroa failed to establish eligibility for CAT relief.
The petition for review is DENIED.
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