Maria Espinoza Castaneda v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA ELENA ESPINOZA No. 19-73142
CASTANEDA,
Agency No. A028-746-486
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Maria Elena Espinoza Castaneda, a native and citizen of Mexico, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying her
motion to terminate and dismissing her appeal from an immigration judge’s
decision denying her applications for cancellation of removal and asylum,
*
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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question
of whether a particular social group is cognizable, except to the extent that
deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review for substantial evidence the agency’s factual findings. Id. at 1241. We
review de novo claims of due process violations in immigration proceedings.
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny the petition for
review.
Espinoza Castaneda does not raise, and therefore waives, any challenge to
the BIA’s denial of her motion to terminate and her application for cancellation of
removal application. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th
Cir. 2013) (concluding petitioner waived challenge to issue not specifically raised
and argued in the opening brief).
The BIA did not err in concluding that Espinoza Castaneda failed to
establish membership in a cognizable particular 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
2 19-73142
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence
supports the finding that Espinoza Castaneda failed to establish that the harm she
fears in Mexico would be on account of a protected ground, specifically, a political
opinion. 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”); Sagaydak v.
Gonzales, 405 F.3d 1035, 1042 (9th Cir. 2005) (to establish a nexus to a political
opinion ground, petitioner must show “(1) that [he] had either an affirmative or
imputed political opinion, and (2) that [he was] targeted on account of that
opinion.”).
Espinoza Castaneda’s contention that the agency failed to address evidence
fails. See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (“[BIA] does
not have to write an exegesis on every contention” (citation and internal quotation
marks omitted)); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006)
(concluding petitioner did not overcome the presumption that the BIA reviewed the
record).
Thus, Espinoza Castaneda’s asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
Espinoza Castaneda failed to show it is more likely than not she would be tortured
by or with the consent or acquiescence of the government if returned to Mexico.
3 19-73142
See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
As stated in the court’s January 31, 2020 order, the stay of removal remains
in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
4 19-73142