Carlos Balderrama v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS BALDERRAMA, AKA Carlos No. 19-71184
Balderrama Ramirez,
Agency No. A206-516-632
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**
Pasadena, California
Before: KLEINFELD, HIGGINSON,*** and OWENS, Circuit Judges.
Petitioner Carlos Balderrama, a native and citizen of Mexico, seeks review
of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an
*
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 Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review the BIA’s legal determinations de novo and factual findings for
substantial evidence. Singh v. Whitaker, 914 F.3d 654, 658 (9th Cir. 2019). Under
the substantial evidence standard, we affirm the BIA’s decision unless compelled
to conclude to the contrary. Id.
1. The BIA did not err by concluding that changed or extraordinary
circumstances did not justify the delayed filing of Balderrama’s asylum application
beyond the one-year deadline and that therefore the application is untimely. See 8
U.S.C. § 1158(a)(2)(B), (D).
(a) Although Balderrama stated in his asylum application that his delayed
filing was due in part to increased levels of crime in Mexico, he did not make that
argument before the BIA and therefore it has not been properly exhausted. Abebe
v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (holding
that a petitioner exhausts “only those issues he raised and argued in his brief before
the BIA”). We therefore lack jurisdiction to review that specific claim. Id.
(b) Balderrama also argues that changes in his personal circumstances that
increase his risk of persecution justify his delayed application. Specifically,
Balderrama claims that he will now be perceived by those in Mexico as having
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wealth and ties to the United States because, while living in the United States for
many years, Balderrama would send money home to his mother in Mexico.
The BIA did not err in rejecting this argument. Indeed, as discussed by both
the IJ and the BIA, Balderrama has presented no evidence that he has been
threatened since 1995, or that his mother or family has been threatened at all, for
any reason, let alone because of Balderrama’s perceived wealth or ties to the
United States. See Vahora v. Holder, 641 F.3d 1038, 1043 (9th Cir. 2011) (holding
that the petitioner demonstrated changed circumstances in part because he
presented evidence that increased rioting in his home country “directly impacted”
his family “in a very serious fashion”).
(c) The BIA properly rejected Balderrama’s argument that he was unaware
of the need to file for asylum within one year of his most recent arrival to the
United States in January 2004 and that this ignorance constitutes an “extraordinary
circumstance” justifying his delayed application. See Sumolang v. Holder, 723
F.3d 1080, 1082 (9th Cir. 2013) (affirming the BIA’s finding that the petitioner’s
ignorance of the one-year filing deadline did not constitute an extraordinary
circumstance); see also Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir.
2003) (“As a general rule, ignorance of the law is no excuse.”).
2. Turning to Balderrama’s application for withholding of removal, the BIA
did not err by concluding that his proposed particular social groups are not
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cognizable.
An applicant for asylum or withholding of removal can establish eligibility
for relief if he proves that he will be persecuted on account of his membership in a
particular social group. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i),
1231(b)(3)(A); see also Barajas-Romero v. Lynch, 846 F.3d 351, 356-57 (9th Cir.
2017). 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.’” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).
“[W]hether a group constitutes a ‘particular social group’ is a question of law.”
Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (quoting Pirir-Boc v. Holder,
750 F.3d 1077, 1081 (9th Cir. 2014)).
(a) As the BIA concluded, Balderrama’s first proposed particular social
group is not cognizable because past and possible future work as a truck delivery
driver is not an “immutable” characteristic. See Diaz-Reynoso v. Barr, 968 F.3d
1070, 1076 (9th Cir. 2020). Indeed, Balderrama has not worked as a delivery driver
since he left Mexico in 1996 and has worked for close to a decade as a cook in the
United States. It is thus clear that being a delivery driver is neither beyond
Balderrama’s power to change nor fundamental to his identity. See id.; see also
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Macedo Templos v. Wilkinson, No. 15-73122, 2021 WL 455329, at *5 (9th Cir.
Feb. 9, 2021) (“[B]eing a wealthy business owner is not an immutable
characteristic because it is not fundamental to an individual’s identity.”)
(b) We also agree with the BIA that Balderrama’s second proposed
particular social group, which consists in relevant part of persons perceived as
wealthy due to a history of sending money to their mothers, is not cognizable
because it is neither “particular” nor “socially distinct.” The proposed group is
overbroad, as it is possible that many immigrants send money or provide other
support to family members who remain in their home countries. See Matter of W-
G-R, 26 I. & N. Dec. 208, 214 (BIA 2014) (holding that “particularity” requires
that a group “must not be amorphous, overbroad, diffuse, or subjective”); Ochoa v.
Gonzales, 406 F.3d 1166, 1170 (9th Cir. 2005) (“Key to establishing a ‘particular
social group’ is ensuring that the group is narrowly defined.”), abrogated on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Nor does the proposed group have “clear boundaries” because it does not define
how much support a person needs to provide in order to be perceived as wealthy.
See Reyes 842 F.3d at 1135. Furthermore, the record supports the BIA’s conclusion
that Balderrama did not provide sufficient evidence to demonstrate “that members
of the proposed group would be perceived as a group by society.” Id. at 1136
(citation omitted); see also Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir.
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2016) (holding “that the proposed group of ‘imputed wealthy Americans’ is not a
discrete class of persons recognized by society as a particular social group”).
3. Finally, the BIA did not err in rejecting Balderrama’s application for CAT
protection on the ground that Balderrama failed to establish that it is more likely
than not that he will be tortured upon returning to Mexico. See 8 C.F.R.
§ 1208.16(c)(2). The BIA did not err in concluding that the past harm allegedly
suffered by Balderrama—a robbery and attempted robbery, as well as being shot
at—did not rise to the level of torture and thus cut against Balderrama’s claim that
he was likely to be tortured in the future. See id. § 1208.18(a)(1)-(2) (defining
torture); id. § 1208.16(c)(3) (describing that “[e]vidence of past torture inflicted
upon the applicant” is a relevant consideration for evaluating the possibility of
future torture).
The petition for review is DENIED.
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